B-172005, APR 5, 1971

B-172005: Apr 5, 1971

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TO FOREMOST FOODS COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22. THE DECISION AS TO WHETHER A CERTAIN PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART FOR SMALL BUSINESS CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCIES INVOLVED. IT SHOULD ALSO BE NOTED THAT OUR JURISDICTION IN THE MATTER OF AWARD OF GOVERNMENT CONTRACTS IS PRINCIPALLY TO INSURE THAT SUCH CONTRACTS ARE AWARDED IN CONFORMANCE WITH APPLICABLE LAWS AND REGULATIONS. WE HAVE NO AUTHORITY TO DIRECT THE PLACEMENT OF INDIVIDUAL GOVERNMENT CONTRACTS IN DESIGNATED AREAS OF THE COUNTRY. HE WILL FOLLOW THE MANDATE OF THE APPLICABLE REGULATIONS. SHOULD HE FIND THAT ALL OF THE ELEMENTS NECESSARY FOR A SET-ASIDE ARE NOT PRESENT.

B-172005, APR 5, 1971

BID PROTEST - SMALL BUSINESS SET ASIDE CONTRACTS CONCERNING THE CONTINUED USE OF 100 PERCENT SMALL BUSINESS SET ASIDE CONTRACTS FOR DAIRY PRODUCTS AT BLYTHEVILLE AIR FORCE BASE, ARKANSAS. IT SHOULD BE NOTED THAT GAO'S JURISDICTION DOES NOT EXTEND TO DIRECTING THE PLACEMENT OF INDIVIDUAL GOVERNMENT CONTRACTS IN DESIGNATED AREAS OF THE COUNTRY, OR WITH PARTICULAR TYPES OR CLASSES OF BIDDERS, OR ON ANY OTHER BASIS THAN AS REQUIRED BY LAW. THE COMP. GEN., THEREFORE, CANNOT DIRECT THAT FUTURE INVITATIONS AT BLYTHEVILLE AIR FORCE BASE BE OPEN TO ALL BIDDERS.

TO FOREMOST FOODS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1971, FURNISHING OUR OFFICE COPIES OF CORRESPONDENCE BETWEEN YOUR OFFICE AND THE CONTRACTING OFFICER AT BLYTHEVILLE AIR FORCE BASE, BLYTHEVILLE, ARKANSAS, PROTESTING THE CONTINUED USE OF 100 PERCENT SMALL BUSINESS SET-ASIDES FOR DAIRY PRODUCTS AT THAT BASE.

YOU CONTEND THAT THE CONTRACTING OFFICER HAS FAILED TO SHOW THAT ADEQUATE COMPETITION FROM SMALL BUSINESS FIRMS CAN REASONABLY BE EXPECTED IN THE FUTURE, AND REQUEST THAT OUR OFFICE "GIVE CONSIDERATION TO THIS MATTER AND THAT FUTURE BID INVITATIONS FOR DAIRY PRODUCTS AT BLYTHEVILLE AIR FORCE BASE BE OPEN TO ALL BIDDERS."

THE DECISION AS TO WHETHER A CERTAIN PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART FOR SMALL BUSINESS CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCIES INVOLVED. SUCH DECISION SHOULD OF COURSE BE MADE AT OR NEAR THE TIME OF EACH PROCUREMENT, AND BASED ON THE FACTS AS THEY EXIST AT THAT TIME. IN VIEW THEREOF IT WOULD APPEAR THAT ANY PRESENT DETERMINATION WHICH WOULD APPLY TO FUTURE PROCUREMENTS WOULD BE PREMATURE.

IT SHOULD ALSO BE NOTED THAT OUR JURISDICTION IN THE MATTER OF AWARD OF GOVERNMENT CONTRACTS IS PRINCIPALLY TO INSURE THAT SUCH CONTRACTS ARE AWARDED IN CONFORMANCE WITH APPLICABLE LAWS AND REGULATIONS. BEYOND THAT, WE HAVE NO AUTHORITY TO DIRECT THE PLACEMENT OF INDIVIDUAL GOVERNMENT CONTRACTS IN DESIGNATED AREAS OF THE COUNTRY, OR WITH PARTICULAR TYPES OR CLASSES OF BIDDERS, OR ON ANY OTHER BASIS THAN AS REQUIRED BY LAW.

WE CANNOT, THEREFORE, DIRECT THAT FUTURE INVITATIONS FOR DAIRY PRODUCTS AT BLYTHEVILLE BE OPEN TO ALL BIDDERS, OR THAT THERE MUST BE TOTAL OR PARTIAL SMALL BUSINESS SET-ASIDES. HOWEVER, WE WOULD PRESUME THAT WITH YOUR CONTINUED EXPRESSIONS OF INTEREST IN THIS AREA TO THE CONTRACTING OFFICER, HE WILL FOLLOW THE MANDATE OF THE APPLICABLE REGULATIONS, AND SHOULD HE FIND THAT ALL OF THE ELEMENTS NECESSARY FOR A SET-ASIDE ARE NOT PRESENT, HE WILL OPEN THE PROCUREMENT FOR ALL BIDDERS.