Protest of Agency Failure To Insert Notification of Small Business Set-Aside on Face of Invitation

B-195761: Sep 12, 1979

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A small business firm protested a solicitation for scientific instruments about a month after bid opening, alleging that the fact that this procurement was restricted as a small business set-aside was not readily and clearly evident. Generally, the protester's sales were handled by two other firms as its scientific distributors, who had submitted bids on this solicitation on behalf of the protester. The bids were rejected by the agency as nonresponsive because neither firm qualified as a small business. A clause in the supplemental instructions to the invitation for bids (IFB) stated that this procurement was a total small business set-aside, but the IFB contained no other notification to bidders concerning this restriction. The agency did not follow regulations which provide that a notification of small business set-aside be placed on the face of the IFB. A synopsis of this procurement which appeared in the Commerce Business Daily (CBD) advised bidders that the procurement was a total small business set-aside. GAO held that the protester and its agents were on constructive notice as to the nature of the procurement when the CBD synopsis was published, and that the protester's agents were on actual notice when they received a copy of the IFB. GAO believed the agency's failure to follow procurement regulations was a procedural deficiency. The protest was without merit and summarily denied.