B-174293, FEB 16, 1973

B-174293: Feb 16, 1973

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SINCE THE DETERMINATION TO INITIATE A SET-ASIDE UNDER SECTION 8(A) IS A MATTER WITHIN THE JURISDICTION OF THE SBA AND THE CONTRACTING AGENCY. THERE IS NO BASIS FOR GAO TO OBJECT TO AN ADMINISTRATIVE DETERMINATION NOT TO SET-ASIDE. THE PROCURING OFFICER OF SUCH AN AGENCY IS AUTHORIZED "IN HIS DISCRETION" TO LET THE CONTRACT TO SBA "UPON SUCH TERMS AND CONDITIONS" AS MAY BE AGREED BETWEEN SBA AND THE PROCURING AGENCY. ALTHOUGH WE NOTE THAT THERE WAS SOME DISAGREEMENT BETWEEN THE SBA AND THE DEFENSE SUPPLY AGENCY AS TO THE APPLICABILITY OF SECTION 8(A) TO SALES CONTRACTS. THE DETERMINATION TO INITIATE A SET ASIDE UNDER SECTION 8(A) IS A MATTER WITHIN THE JURISDICTION OF THE SBA AND THE CONTRACTING AGENCY.

B-174293, FEB 16, 1973

BID PROTEST - SALES CONTRACT - SECTION 8(A) PROGRAM DECISION DENYING THE PROTEST OF M&M GREASE COMPANY AGAINST THE FAILURE OF THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIF., TO SET ASIDE FOR EXCLUSIVELY SMALL BUSINESS PARTICIPATION UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT AN IFB FOR THE SALE AND REMOVAL OF SURPLUS GARBAGE, GREASE, AND BONES FROM SEVERAL MILITARY INSTALLATIONS. SINCE THE DETERMINATION TO INITIATE A SET-ASIDE UNDER SECTION 8(A) IS A MATTER WITHIN THE JURISDICTION OF THE SBA AND THE CONTRACTING AGENCY, THERE IS NO BASIS FOR GAO TO OBJECT TO AN ADMINISTRATIVE DETERMINATION NOT TO SET-ASIDE.

TO W. GAINES HILL, INCORPORATED:

WE REFER TO YOUR LETTER DATED OCTOBER 30, 1972, AND SUBSEQUENT COMMUNICATIONS, ON BEHALF OF THE M & M GREASE COMPANY, PROTESTING AGAINST THE FAILURE OF THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIFORNIA, TO SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT, THE SALE AND REMOVAL OF SURPLUS GARBAGE, COOKED GREASE, AND BONES, FAT, AND MEAT FURNISHINGS FROM SEVERAL MILITARY INSTALLATIONS LOCATED IN ARIZONA, CALIFORNIA, NEVADA, NEW MEXICO, AND TEXAS FOR THE PERIOD JULY 1, 1971 THROUGH JUNE 30, 1972, UNDER SALES INVITATION FOR BIDS 46-1126. YOU ALSO PROTEST THE FAILURE TO SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION UNDER SBA'S SECTION 8(A) PROGRAM ANY SUBSEQUENT SIMILAR SALES.

SECTION 8(A) OF THE SMALL BUSINESS ACT (15 U.S.C. 637(A)), AUTHORIZES SBA TO ENTER INTO CONTRACTS WITH ANY GOVERNMENT AGENCY HAVING PROCUREMENT POWERS, AND THE PROCURING OFFICER OF SUCH AN AGENCY IS AUTHORIZED "IN HIS DISCRETION" TO LET THE CONTRACT TO SBA "UPON SUCH TERMS AND CONDITIONS" AS MAY BE AGREED BETWEEN SBA AND THE PROCURING AGENCY. ALTHOUGH WE NOTE THAT THERE WAS SOME DISAGREEMENT BETWEEN THE SBA AND THE DEFENSE SUPPLY AGENCY AS TO THE APPLICABILITY OF SECTION 8(A) TO SALES CONTRACTS, NEITHER AGENCY HAS CALLED UPON US FOR A RESOLUTION OF ANY DISAGREEMENT WHICH MIGHT STILL REMAIN. OF COURSE, THE DETERMINATION TO INITIATE A SET ASIDE UNDER SECTION 8(A) IS A MATTER WITHIN THE JURISDICTION OF THE SBA AND THE CONTRACTING AGENCY. THEREFORE, WE SEE NO BASIS FOR OBJECTING TO THE ADMINISTRATIVE DETERMINATION NOT TO SET ASIDE THE SALE IN QUESTION. FURTHER, WE SEE NO BASIS AT THIS TIME FOR COMMENTING ON THE APPLICABILITY OF THE SECTION 8(A) PROGRAM TO ANY FUTURE SALES BY THE DEFENSE SURPLUS SALES OFFICE. ACCORDINGLY, THE PROTEST IS DENIED.