B-232303.2, Sep 13, 1988, 88-2 CPD 241
Highlights
PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review DIGEST: Protest that agency was required by Federal Acquisition Regulation Sec. 19.501(g) to issue solicitation as small business set-aside because previous requirement had been procured on that basis is dismissed where previous procurement was not a small business set-aside but instead was processed through the section 8(a) program under the Small Business Act. Logistical contends that the set-aside for SDB is not permissible because this service previously has been acquired successfully by the contracting officer on the basis of a small business set-aside. The Army has advised our Office that the previous requirement was not competed as a small business set-aside.
B-232303.2, Sep 13, 1988, 88-2 CPD 241
PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review DIGEST: Protest that agency was required by Federal Acquisition Regulation Sec. 19.501(g) to issue solicitation as small business set-aside because previous requirement had been procured on that basis is dismissed where previous procurement was not a small business set-aside but instead was processed through the section 8(a) program under the Small Business Act.
Logistical Support, Inc.:
Logistical Support, Inc. objects to the Department of the Army's decision to issue, as a small disadvantaged business (SDB) set-aside, solicitation No. DACH77-88-B-1058 for mess attendant services at Schofield Barracks, Hawii. Logistical contends that the set-aside for SDB is not permissible because this service previously has been acquired successfully by the contracting officer on the basis of a small business set-aside. Logistical contends that Federal Acquisition Regulation (FAR) Sec. 19.501(g) (FAC 84-37) prohibits an SDB set-aside in these circumstances. FAR Sec. 19.501(g) provides that once a product or service has been acquired successfully by a contracting office on the basis of a small business set-aside, all future requirements of that office for that particular product or service shall, if required by agency regulations, be acquired on the basis of a repetitive set-aside. In addition, a Department of Defense interim rule published in the Federal Register on February 19, 1988, precludes the use of a SDB set-aside where the product or service successfully has been acquired previously under a small business set-aside. Interim rule Sec. 219.502-72(b)(1), 53 Fed. Reg. 5,123 (1988) (to be codified at 48 C.F.R. Sec. 219.502-72(b)(1)).
The Army has advised our Office that the previous requirement was not competed as a small business set-aside, but was processed under the section 8(a) program established by the Small Business Act, 15 U.S.C. Sec. 637(a) (1982). Indeed, we recently dismissed an identical protest of this procurement precisely because an award under the section 8(a) program is not an award under a small business set-aside, such that the Army was required to set aside this subsequent solicitation for small businesses. See MLB Professional Services, B-232303, Aug. 26, 1988, 88-2 CPD Para.
The same rule applies here. Accordingly, the protest is dismissed.