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B-190272, NOV 23, 1977

B-190272 Nov 23, 1977
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INTERPRETATION THAT SOLICITATION IS SMALL BUSINESS SET-ASIDE. IS NOT REASONABLE. SINCE WHEN SOLICITATION IS SMALL BUSINESS SET-ASIDE NOTICE MUST BE INCLUDED IN INVITATION FOR BIDS (IFB). CONTENTION THAT PARTICULAR PROCUREMENT SHOULD HAVE BEEN SET ASIDE WILL NOT BE CONSIDERED. ARGUES THAT THE SOLICITATION WAS SET ASIDE FOR SMALL BUSINESSES. ALSO CONTENDS THAT ITS UNDERSTANDING WAS BASED ON PAST EXPERIENCE WITH OTHER AGENCIES INVOLVING THE SAME TYPE OF WORK AND ALSO PROCURED USING THE STANDARD FORM 33 SOLICITATION. THE STANDARD FORM 33 IS USED FOR MOST GOVERNMENT SUPPLY CONTRACT PROCUREMENTS. THE INSTRUCTION QUOTED FROM SECTION 1(C) OF THE STANDARD FORM 33A IS MERELY A DEFINITION OF THE INCLUSIVENESS OF THE TERM "ADVERTISED" AND IS INCLUDED ON ALL STANDARD FORMS 33A.

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B-190272, NOV 23, 1977

1. INTERPRETATION THAT SOLICITATION IS SMALL BUSINESS SET-ASIDE, BASED ON DEFINITION OF TERM "ADVERTISED" IN STANDARD FORM 33A AND FACT THAT PREVIOUS SIMILAR PROCUREMENTS HAD BEEN SET-ASIDES, IS NOT REASONABLE, SINCE WHEN SOLICITATION IS SMALL BUSINESS SET-ASIDE NOTICE MUST BE INCLUDED IN INVITATION FOR BIDS (IFB), AND IFB HERE HAS NO SUCH NOTICE. 2. SINCE NOTHING IN SMALL BUSINESS ACT OR PROCUREMENT REGULATIONS MANDATES THAT ANY PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS, CONTENTION THAT PARTICULAR PROCUREMENT SHOULD HAVE BEEN SET ASIDE WILL NOT BE CONSIDERED.

W.O.H. ENTERPRISES, INC:

W.O.H. ENTERPRISES, INC. (W.O.H.), PROTESTS THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 77-101, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA, TO ANY LARGE BUSINESS. W.O.H. ARGUES THAT THE SOLICITATION WAS SET ASIDE FOR SMALL BUSINESSES, BASED UPON ITS INTERPRETATION OF THE DEFINITION OF "ADVERTISED" IN SECTION 1(C) OF THE STANDARD FORM 33A, "SOLICITATION INSTRUCTIONS AND CONDITIONS," WHICH STATES, IN PERTINENT PART, THAT:

"FOR PURPOSES OF THIS SOLICITATION AND BLOCK 2 OF STANDARD FORM 33, THE TERM 'ADVERTISED' INCLUDES SMALL BUSINESS RESTRICTED ADVERTISING AND OTHER TYPES OF RESTRICTED ADVERTISING."

W.O.H. ALSO CONTENDS THAT ITS UNDERSTANDING WAS BASED ON PAST EXPERIENCE WITH OTHER AGENCIES INVOLVING THE SAME TYPE OF WORK AND ALSO PROCURED USING THE STANDARD FORM 33 SOLICITATION.

THE STANDARD FORM 33 IS USED FOR MOST GOVERNMENT SUPPLY CONTRACT PROCUREMENTS, WHETHER ADVERTISED OR NEGOTIATED, OR SET ASIDE FOR SMALL BUSINESSES OR NOT. FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1 16.101(A) AND (B) (1964 ED. AMEND. 105). THE INSTRUCTION QUOTED FROM SECTION 1(C) OF THE STANDARD FORM 33A IS MERELY A DEFINITION OF THE INCLUSIVENESS OF THE TERM "ADVERTISED" AND IS INCLUDED ON ALL STANDARD FORMS 33A, WHICH ACCOMPANY MOST GOVERNMENT SUPPLY CONTRACT PROCUREMENTS. IF THIS HAD BEEN A SMALL BUSINESS SET-ASIDE A NOTICE OF THAT FACT WOULD HAVE BEEN INCLUDED IN THE INVITATION FOR BIDS. FPR SEC. 1-1.706-5(C) (1964 ED. AMEND. 101). THEREFORE, W.O.H.'S INTERPRETATION IS UNREASONABLE.

W.O.H. CONTENDS, ALTERNATIVELY, THAT THIS PROCUREMENT SHOULD HAVE BEEN SET ASIDE FOR SMALL BUSINESSES AND ASKS THAT IT BE CANCELED AND RESOLICITED AS SUCH, OR THAT FUTURE PROJECTS OF THIS NATURE BE SET ASIDE FOR SMALL BUSINESS. SINCE, HOWEVER, NOTHING IN THE SMALL BUSINESS ACT OR PROCUREMENT REGULATIONS MAKES IT MANDATORY THAT ANY PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS, OUR OFFICE WILL NOT CONSIDER THIS CONTENTION. SEE, E.G., TIDEWATER PROTECTIVE SERVICES, INC., 56 COMP.GEN. 118 (1976), 76-2 CPD 462; MULTI-MAC SERVICE CORPORATION, B-190360, OCTOBER 21, 1977.

ACCORDINGLY, THE PROTEST IS DENIED.

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