B-207005, APR 12, 1982
Highlights
COULD BEST PERFORM THE CONTRACTS IS DISMISSED BECAUSE IT DOES NOT INVOLVE ANY ALLEGATION THAT THE SET ASIDE DECISION WAS CONTRARY TO LAW. DEFENSE ACQUISITION REGULATION SEC. 1-706.5 PROVIDES THAT PROCUREMENTS SHALL BE SET ASIDE FOR SMALL BUSINESS CONCERNS IF THERE IS A REASONABLE EXPECTATION THAT OFFERS WILL BE OBTAINED FROM AT LEAST TWO RESPONSIBLE SMALL BUSINESS CONCERNS AND THAT AWARD WILL BE MADE AT A REASONABLE PRICE. THE DECISION AS TO WHETHER SUCH AN EXPECTATION EXISTS IS BASICALLY A BUSINESS JUDGMENT WITHIN THE BROAD DISCRETION OF CONTRACTING OFFICIALS. OUR REVIEW OF CHALLENGES TO SET ASIDE DECISIONS IS GENERALLY LIMITED TO ASCERTAINING WHETHER THERE HAS BEEN AN ABUSE OF THAT BROAD DISCRETION.
B-207005, APR 12, 1982
DIGEST: PROTEST THAT PROCUREMENTS FOR EQUIPMENT REPAIR SHOULD NOT BE SET ASIDE FOR SMALL BUSINESS BECAUSE THE ORIGINAL EQUIPMENT MANUFACTURER, A LARGE BUSINESS, COULD BEST PERFORM THE CONTRACTS IS DISMISSED BECAUSE IT DOES NOT INVOLVE ANY ALLEGATION THAT THE SET ASIDE DECISION WAS CONTRARY TO LAW, REGULATION, OR SOUND PROCUREMENT PRACTICE.
INGERSOLL-RAND:
INGERSOLL-RAND PROTESTS THE NAVY'S DECISION TO SET ASIDE FOR SMALL BUSINESS TWO PROCUREMENTS (SOLICITATION NOS. N00123-82-B-0662 AND 0665) FOR THE REPAIR OF AIR COMPRESSORS. WE DISMISS THE PROTEST.
DEFENSE ACQUISITION REGULATION SEC. 1-706.5 PROVIDES THAT PROCUREMENTS SHALL BE SET ASIDE FOR SMALL BUSINESS CONCERNS IF THERE IS A REASONABLE EXPECTATION THAT OFFERS WILL BE OBTAINED FROM AT LEAST TWO RESPONSIBLE SMALL BUSINESS CONCERNS AND THAT AWARD WILL BE MADE AT A REASONABLE PRICE. THE DECISION AS TO WHETHER SUCH AN EXPECTATION EXISTS IS BASICALLY A BUSINESS JUDGMENT WITHIN THE BROAD DISCRETION OF CONTRACTING OFFICIALS; ACCORDINGLY, OUR REVIEW OF CHALLENGES TO SET ASIDE DECISIONS IS GENERALLY LIMITED TO ASCERTAINING WHETHER THERE HAS BEEN AN ABUSE OF THAT BROAD DISCRETION. SEE, E.G., BURRELL'S PRESS CLIPPING SERVICE, B-199945, MARCH 2, 1981, 81-1 CPD 152.
THE PROTESTER, HOWEVER, DOES NOT ALLEGE THAT ADEQUATE SMALL BUSINESS COMPETITION IS NOT AVAILABLE. INSTEAD, IT STATES THAT A LARGE NUMBER OF THE COMPRESSORS WERE BUILT BY INGERSOLL-RAND AND THAT THE COMPANY IS IN THE BEST POSITION TO OVERHAUL THE UNITS; IT FURTHER STATES THAT THE EXCLUSION OF THE ORIGINAL MANUFACTURER FROM THE COMPETITION DOES "A DISSERVICE TO THE FLEET ***." IN SHORT, THE PROTESTER IS MERELY ASSERTING THAT THE SET-ASIDE DECISION WAS UNWISE.
UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 21 (1981), WE CONSIDER COMPLAINTS THAT AGENCY PROCUREMENT ACTIONS ARE CONTRARY TO THE LAWS AND REGULATIONS GOVERNING FEDERAL PROCUREMENT OR TO SOUND PROCUREMENT PRACTICES. WE DO NOT, HOWEVER, CONSIDER ASSERTIONS THAT THE GOVERNMENT'S NEEDS COULD BE BETTER SATISFIED THROUGH A DIFFERENT PROCUREMENT APPROACH. INGERSOLL-RAND'S PROTEST FALLS WITHIN THIS LATTER CATEGORY.
ACCORDINGLY, THE PROTEST IS DISMISSED.