B-207972, AUG 5, 1982

B-207972: Aug 5, 1982

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DIGEST: PROTEST THAT PROCUREMENT SHOULD HAVE BEEN PARTIALLY SET ASIDE FOR SMALL BUSINESS IS DISMISSED SINCE. THE PURPOSE OF THE IFB IS TO SOLICIT BIDS FOR RADIO TESTING UNITS WITH SUPPORTING TECHNICAL DATA. THIS PROCUREMENT WILL BE A RESOLICITATION SINCE THE ORIGINAL IFB WAS CANCELED BASED ON OUR RECOMMENDATION IN IFR. SHOULD HAVE ALSO REJECTED CUSHMAN'S BID AS NONRESPONSIVE. THAT THE PROCUREMENT WAS NOT SUITED FOR A PARTIAL SET-ASIDE BECAUSE IT WAS NOT SEVERABLE INTO TWO OR MORE ECONOMIC PRODUCTION RUNS AND BECAUSE THERE WAS A REASONABLE EXPECTATION THAT ONLY TWO CONCERNS (ONE LARGE AND ONE SMALL) WOULD RESPOND TO THE SOLICITATION. THIS APPEAL WAS ULTIMATELY BROUGHT BEFORE THE SECRETARY OF THE ARMY.

B-207972, AUG 5, 1982

DIGEST: PROTEST THAT PROCUREMENT SHOULD HAVE BEEN PARTIALLY SET ASIDE FOR SMALL BUSINESS IS DISMISSED SINCE, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, NOTHING IN THE SMALL BUSINESS ACT OR THE PROCUREMENT REGULATIONS MANDATES THAT ANY PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS.

CUSHMAN ELECTRONICS, INC.:

CUSHMAN ELECTRONICS, INC. (CUSHMAN), PROTESTS THE DECISION BY THE UNITED STATES ARMY COMMUNICATIONS-ELECTRONICS COMMAND (ARMY), FORT MONMOUTH, NEW JERSEY, TO ISSUE INVITATION FOR BIDS (IFB) NO. DAAB07-82 B-H095 ON AN UNRESTRICTED BASIS. IN CUSHMAN'S OPINION, THE SOLICITATION SHOULD BE A PARTIAL SMALL BUSINESS SET-ASIDE.

WE DISMISS THE PROTEST.

THE PURPOSE OF THE IFB IS TO SOLICIT BIDS FOR RADIO TESTING UNITS WITH SUPPORTING TECHNICAL DATA, MANUALS AND TRAINING. WHEN ISSUED, THIS PROCUREMENT WILL BE A RESOLICITATION SINCE THE ORIGINAL IFB WAS CANCELED BASED ON OUR RECOMMENDATION IN IFR, INC., B-203391.4, APRIL 1, 1982, 82-1 CPD 292. IN THAT DECISION, WE FOUND THAT THE ARMY PROPERLY REJECTED IFR, INC.'S BID AS NONRESPONSIVE, BUT SHOULD HAVE ALSO REJECTED CUSHMAN'S BID AS NONRESPONSIVE.

IN CONNECTION WITH THE ORIGINAL SOLICITATION, THE LOCAL SMALL BUSINESS ADMINISTRATION (SBA) REPRESENTATIVE HAD RECOMMENDED THAT THE PROCUREMENT BE A 50-PERCENT PARTIAL SMALL BUSINESS SET-ASIDE. HOWEVER, THE CONTRACTING OFFICER DISAGREED, ARGUING, AMONG OTHER THINGS, THAT THE PROCUREMENT WAS NOT SUITED FOR A PARTIAL SET-ASIDE BECAUSE IT WAS NOT SEVERABLE INTO TWO OR MORE ECONOMIC PRODUCTION RUNS AND BECAUSE THERE WAS A REASONABLE EXPECTATION THAT ONLY TWO CONCERNS (ONE LARGE AND ONE SMALL) WOULD RESPOND TO THE SOLICITATION. IN THE CONTRACTING OFFICER'S OPINION, THESE FACTORS UNDER DEFENSE ACQUISITION REGULATION (DAR) SECS. 1-706.1(A)(II) AND (III) (DAC NO. 76-20, SEPTEMBER 17, 1979), GENERALLY, PRECLUDED A PARTIAL SET-ASIDE. THE SBA APPEALED THE CONTRACTING OFFICER'S DECISION IN ACCORDANCE WITH DAR SEC. 1-706.3. THIS APPEAL WAS ULTIMATELY BROUGHT BEFORE THE SECRETARY OF THE ARMY, WHO DENIED THE APPEAL.

ON RESOLICITATION, THE SBA HAS ONCE AGAIN RECOMMENDED A PARTIAL SET ASIDE, AND THE CONTRACTING OFFICER HAS ONCE AGAIN REJECTED THE RECOMMENDATION. SBA HAS APPEALED THIS DECISION, AND WE ARE INFORMED THAT IT IS NOW BEFORE THE SECRETARY OF THE ARMY.

CUSHMAN'S PROTEST ESSENTIALLY REITERATES THE ARGUMENTS MADE BY SBA DURING THE VARIOUS APPEALS. CUSHMAN'S MAJOR POINT IS THAT THE ARMY HAS VIOLATED THE MANDATE OF DAR SEC. 1-706.6 CONCERNING PARTIAL SET ASIDES. THE ARMY, HOWEVER, MAINTAINS THAT IT HAS FOLLOWED ALL THE APPLICABLE REGULATIONS AND, MOREOVER, THAT THIS IS NOT A MATTER WHICH OUR OFFICE USUALLY CONSIDERS UNDER OUR BID PROTEST FUNCTION.

IT IS WELL RECOGNIZED THAT, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, THERE IS NOTHING IN THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 644 (SUPP. III, 1979), OR THE PROCUREMENT REGULATIONS WHICH MAKES IT MANDATORY THAT ANY PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS. WHILE IT IS THE GOVERNMENT'S POLICY THAT A FAIR PROPORTION OF PURCHASES BE PLACED WITH SMALL BUSINESS CONCERNS, THE DECISION WHETHER A PARTICULAR PROCUREMENT SHOULD BE SET ASIDE FOR SMALL BUSINESS ESSENTIALLY IS ONE WITHIN THE DISCRETION OF THE CONTRACTING ACTIVITY. ROMAR CONSULTANTS, INC., B-206764, MARCH 29, 1982, 82-1 CPD 290.

THEREFORE, CUSHMAN'S DISAGREEMENT WITH THE ARMY'S DISCRETIONARY DECISION IS NOT GROUNDS TO DISTURB IT. JAMES G. BIDDLE COMPANY, B-196394, FEBRUARY 13, 1980, 80-1 CPD 129. MOREOVER, CUSHMAN HAS NOT SHOWN THAT THE ARMY HAS VIOLATED ANY REGULATION. TO THE CONTRARY, THE RECORD INDICATES THAT THE SBA - THE AGENCY ACTUALLY CHARGED WITH THE RESPONSIBILITY OF MONITORING THE SET-ASIDE PROGRAM - WAS ABLE TO TAKE ALL THE STEPS AVAILABLE TO APPEAL THE CONTRACTING OFFICER'S REJECTION OF THE PARTIAL SET-ASIDE. UNDER THE CIRCUMSTANCES, OUR OFFICE WILL NOT CONSIDER THE MATTER FURTHER.

CUSHMAN HAS REQUESTED A CONFERENCE PURSUANT TO 4 C.F.R. SEC. 21.7 (1982). HOWEVER, IN VIEW OF THE ABOVE, A CONFERENCE WOULD SERVE NO USEFUL PURPOSE. SEE, FOR EXAMPLE, WATERBURY FARREL, DIVISION OF TEXTRON, INC., B-203798, JULY 24, 1981, 81-2 CPD 60.

PROTEST DISMISSED.