B-219455.4, SEP 17, 1985, OFFICE OF GENERAL COUNSEL

B-219455.4: Sep 17, 1985

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PRECIS-UNAVAILABLE THE HONORABLE BILL BRADLEY: UNITED STATES SENATE THIS IS IN RESPONSE TO YOUR LETTER OF AUGUST 28. NJCT ALLEGED THAT ONLY ONE ACCEPTABLE BID WAS RECEIVED UNDER THE SOLICITATION'S SMALL BUSINESS SET-ASIDE. DOES NOT VIOLATE THE FEDERAL ACQUISITION REGULATION (FAR) AS THE FAR ONLY REQUIRES A REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM AT LEAST TWO RESPONSIBLE SMALL BUSINESS CONCERNS AND THAT AWARD WILL BE MADE AT A REASONABLE PRICE. 48 C.F.R. 200 WAS UNREASONABLE (NJCT WAS LOW BIDDER AT $1. 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.

B-219455.4, SEP 17, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE BILL BRADLEY:

UNITED STATES SENATE

THIS IS IN RESPONSE TO YOUR LETTER OF AUGUST 28, 1985, ENCLOSING CORRESPONDENCE FROM MR. DANIEL M. SPRITZER, PRESIDENT OF NJCT CORPORATION. MR. SPRITZER'S CORRESPONDENCE CONCERNS NJTC'S PROTEST TO OUR OFFICE AGAINST THE AWARD OF A CONTRACT TO GLOBE MACHINE COMPANY UNDER SOLICITATION NO. DLA400-85-B-8815, ISSUED BY THE DEFENSE LOGISTICS AGENCY. WE DISMISSED NJCT'S PROTEST IN NJCT CORPORATION, B-219455, JULY 22, 1985, 85-2 CPD PARA. 70, COPY ENCLOSED, FOR THE FOLLOWING REASONS.

FIRST, NJCT ALLEGED THAT ONLY ONE ACCEPTABLE BID WAS RECEIVED UNDER THE SOLICITATION'S SMALL BUSINESS SET-ASIDE. THIS, HOWEVER, DOES NOT VIOLATE THE FEDERAL ACQUISITION REGULATION (FAR) AS THE FAR ONLY REQUIRES A REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM AT LEAST TWO RESPONSIBLE SMALL BUSINESS CONCERNS AND THAT AWARD WILL BE MADE AT A REASONABLE PRICE. 48 C.F.R. SEC. 19.502-2 (1984).

SECOND, 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 DETAILED 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, FEB. 11, 1985, 85-1 CPD PARA. 176.

FINALLY, NJCT'S GENERAL ALLEGATION REGARDING THE ADVERSE IMPACT OF THE SET-ASIDE DETERMINATION ON COMPETITION WITHIN THE INDUSTRY WAS 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, FEB. 14, 1985, 85-1 CPD PARA. 202. NJCT FAILED TO FILE ITS OBJECTION TO THE SOLICITATION PRIOR TO BID OPENING.

BY LETTER RECEIVED AUGUST 13, 1985, NJCT REQUESTED RECONSIDERATION OF OUR JULY 22 DECISION, BUT WE DISMISSED THE REQUEST BECAUSE IT WAS UNTIMELY FILED. NJCT CORPORATION-- REQUEST FOR RECONSIDERATION, B-219455.3, AUG. 21, 1985, 85-2 CPD PARA. ---. OUR BID PROTEST REGULATIONS PROVIDE THAT REQUESTS FOR RECONSIDERATION MUST BE RECEIVED BY THIS OFFICE NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR RECONSIDERATION IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 C.F.R. SEC. 21.12(B). SINCE NJCT'S REQUEST FOR RECONSIDERATION WAS NOT RECEIVED IN OUR OFFICE WITHIN THE APPLICABLE TIME PERIOD, WE DISMISSED IT.

WE TRUST THIS INFORMATION IS OF ASSISTANCE.