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B-219455, JUL 22, 1985, 85-2 CPD 70

B-219455 Jul 22, 1985
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THE FACT THAT ONLY ONE BID FROM A QUALIFIED SMALL BUSINESS MAY HAVE BEEN RECEIVED IN RESPONSE TO A SMALL BUSINESS SET-ASIDE SOLICITATION DOES NOT AFFECT THE PROPRIETY OF THE SET-ASIDE. MERE ASSERTION THAT SMALL BUSINESS AWARDEE'S PRICE WAS UNREASONABLE. BY LARGE BUSINESS BIDDER WHOSE PRICE WAS LESS THAN 5 PERCENT LOWER. PROTEST AFTER BID OPENING THAT A SOLICITATION SHOULD NOT HAVE BEEN SET ASIDE FOR SMALL BUSINESS BECAUSE OF ADVERSE IMPACT OF SET ASIDE IS UNTIMELY. THE SOLICITATION WAS A SMALL BUSINESS SET-ASIDE UNDER WHICH ONLY TWO SMALL BUSINESS BIDS WERE RECEIVED. NJCT FURTHER CONTENDS THAT GLOBE'S PRICE IS UNREASONABLE. NJCT'S ALLEGATION THAT ONLY ONE BID WAS RECEIVED FROM A QUALIFYING SMALL BUSINESS IS NOT A VALID BASIS FOR PROTEST.

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B-219455, JUL 22, 1985, 85-2 CPD 70

CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SET-ASIDES - PROPRIETY DIGEST: 1. THE FACT THAT ONLY ONE BID FROM A QUALIFIED SMALL BUSINESS MAY HAVE BEEN RECEIVED IN RESPONSE TO A SMALL BUSINESS SET-ASIDE SOLICITATION DOES NOT AFFECT THE PROPRIETY OF THE SET-ASIDE. CONTRACTS - PROTESTS - BASIS FOR PROTEST REQUIREMENT 2. MERE ASSERTION THAT SMALL BUSINESS AWARDEE'S PRICE WAS UNREASONABLE, BY LARGE BUSINESS BIDDER WHOSE PRICE WAS LESS THAN 5 PERCENT LOWER, DOES NOT STATE A SUFFICIENTLY DETAILED VALID BASIS OF PROTEST. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTESTS - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 3. PROTEST AFTER BID OPENING THAT A SOLICITATION SHOULD NOT HAVE BEEN SET ASIDE FOR SMALL BUSINESS BECAUSE OF ADVERSE IMPACT OF SET ASIDE IS UNTIMELY.

NJCT CORPORATION:

NJCT CORPORATION (NJCT) PROTESTS THE AWARD OF A CONTRACT TO GLOBE MACHINE COMPANY (GLOBE) UNDER SOLICITATION NO. DLA400-85-B-8815 ISSUED BY THE DEFENSE LOGISTICS AGENCY. THE SOLICITATION WAS A SMALL BUSINESS SET-ASIDE UNDER WHICH ONLY TWO SMALL BUSINESS BIDS WERE RECEIVED. NJCT, A LARGE BUSINESS BIDDER, ASSERTS THAT ONE OF THE BIDDERS MAY NOT QUALIFY AS A SMALL BUSINESS. NJCT FURTHER CONTENDS THAT GLOBE'S PRICE IS UNREASONABLE.

WE DISMISS THE PROTEST UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F) (1985).

FIRST, NJCT'S ALLEGATION THAT ONLY ONE BID WAS RECEIVED FROM A QUALIFYING SMALL BUSINESS IS NOT A VALID BASIS FOR PROTEST. THE FACT THAT ONLY ONE ACCEPTABLE BID IS RECEIVED DOES NOT AFFECT THE PROPRIETY OF A DETERMINATION TO SET A PROCUREMENT ASIDE FOR SMALL BUSINESS SINCE THE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 19.502-2 (1985), REQUIRES ONLY THAT THERE BE A REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM AT LEAST TWO RESPONSIBLE SMALL BUSINESS CONCERNS AND THAT AWARD WILL BE MADE AT REASONABLE PRICES. A.H. ROBINS CO., B-218127, FEB. 14, 1985, 85-1 CPD PARA. 202; MANTECH INTERNATIONAL CORP., B-216505, FEB. 11, 1985, 85-1 CPD PARA. 176.

NEXT, NJCT'S MERE CONTENTION THAT GLOBE'S PRICE OF $1,200 WAS UNREASONABLE (NJCT WAS LOW BIDDER AT $1,147), WITHOUT ANY OTHER BASIS OR SUPPORT DOES NOT MEET OUR REQUIREMENT THAT A PROTEST CONTAIN A DETAIL STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST. 4 C.F.R. SEC. 21.1(C)(4) (1985). IN THIS CONNECTION, WE HAVE RECOGNIZED THAT THE GOVERNMENT MAY PAY A PREMIUM PRICE TO SMALL BUSINESSES ON RESTRICTED PROCUREMENTS TO INSURE PLACEMENT OF A FAIR PROPORTION OF TOTAL GOVERNMENT PURCHASES WITH SMALL BUSINESS FIRMS. MANTECH INTERNATIONAL CORP., B-216505, SUPRA.

FINALLY, NJCT'S GENERAL ALLEGATION REGARDING THE ADVERSE IMPACT OF THE SET-ASIDE DETERMINATION ON COMPETITION WITHIN THE INDUSTRY IS UNTIMELY. OUR BID PROTEST REGULATIONS REQUIRE THAT AN ALLEGATION SUCH AS THIS, WHICH IS BASED ON AN ALLEGED IMPROPRIETY (THE SET-ASIDE RESTRICTION) IN THE SOLICITATION THAT IS APPARENT PRIOR TO BID OPENING, MUST BE FILED PRIOR TO BID OPENING. 4 C.F.R. SEC. 21.2(A)(1); A.H. ROBINS CO., B-218127, SUPRA.

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