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B-211546, MAY 6, 1983

B-211546 May 06, 1983
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DIGEST: PROTEST THAT AGENCY SHOULD HAVE SET ASIDE PROCUREMENT FOR SMALL BUSINESS CONCERNS IS SUMMARILY DENIED SINCE. THERE IS NO LEGAL REQUIREMENTS THAT A PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS. THERE ARE ONLY TWO SITUATIONS. IN WHICH AN AGENCY GENERALLY IS REQUIRED TO SET ASIDE A SPECIFIC PROCUREMENT FOR SMALL BUSINESS CONCERNS. ONE IS WHERE A CONTRACT "HAS AN ANTICIPATED VALUE OF LESS THAN $10. 000 AND WHICH IS SUBJECT TO SMALL PURCHASE PROCEDURES. " UNLESS THE CONTRACTING OFFICER IS UNABLE TO OBTAIN OFFERS FROM TWO OR MORE SMALL BUSINESSES THAT ARE COMPETITIVE IN TERMS OF PRICE. THE OTHER IS WHERE A PRODUCT OR SERVICE PREVIOUSLY HAS "BEEN ACQUIRED SUCCESSFULLY BY A CONTRACTING OFFICER ON THE BASIS OF A SMALL BUSINESS SET-ASIDE.

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B-211546, MAY 6, 1983

DIGEST: PROTEST THAT AGENCY SHOULD HAVE SET ASIDE PROCUREMENT FOR SMALL BUSINESS CONCERNS IS SUMMARILY DENIED SINCE, WITH TWO EXCEPTIONS NOT ALLEGED TO EXIST IN THIS CASE, THERE IS NO LEGAL REQUIREMENTS THAT A PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESS.

ART ANDERSON ASSOCIATES:

ART ANDERSON ASSOCIATES (AAA) PROTESTS THE DEPARTMENT OF THE NAVY'S FAILURE TO SET ASIDE FOR SMALL BUSINESSES ITS REQUEST FOR PROPOSALS N00406 -83-R-1563 FOR PREPARATION OF TECHNICAL PUBLICATIONS. AAA ASSERTS THAT THE NAVY FAILED TO IDENTIFY SEVERAL CAPABLE SMALL BUSINESS SOURCES FOR THIS PROCUREMENT WHICH CONTRIBUTED TO ITS DECISION NOT TO SET ASIDE.

THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 637, ET SEQ. (1976 AND SUPP. IV 1980), REFLECTS A NATIONAL POLICY OF FURTHERING THE INTERESTS OF SMALL BUSINESS CONCERNS AND IN AWARDING A FAIR PORTION OF GOVERNMENT CONTRACTS TO SUCH CONCERNS. THERE ARE ONLY TWO SITUATIONS, HOWEVER, IN WHICH AN AGENCY GENERALLY IS REQUIRED TO SET ASIDE A SPECIFIC PROCUREMENT FOR SMALL BUSINESS CONCERNS. ONE IS WHERE A CONTRACT "HAS AN ANTICIPATED VALUE OF LESS THAN $10,000 AND WHICH IS SUBJECT TO SMALL PURCHASE PROCEDURES," UNLESS THE CONTRACTING OFFICER IS UNABLE TO OBTAIN OFFERS FROM TWO OR MORE SMALL BUSINESSES THAT ARE COMPETITIVE IN TERMS OF PRICE, QUALITY AND DELIVERY. 15 U.S.C. SEC. 644(J) (SUPP. IV 1980). THE OTHER IS WHERE A PRODUCT OR SERVICE PREVIOUSLY HAS "BEEN ACQUIRED SUCCESSFULLY BY A CONTRACTING OFFICER ON THE BASIS OF A SMALL BUSINESS SET-ASIDE," SUBJECT TO THE EXPECTATION THAT COMPETITIVE OFFERS AT REASONABLE PRICES WILL BE OBTAINED. DEFENSE ACQUISITION REGULATION SEC. 1-706.1(F). IN ALL OTHER CASES, THE DECISION NOT TO SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IS DISCRETIONARY WITH THE CONTRACTING OFFICER. HOME THERAPY EQUIPMENT, INC., B-207714, JUNE 14, 1982, 82-1 CPD 579; INFORMATION MARKETING, INC., B-205903, MAY 25, 1982, 82-1 CPD 497.

THE PROTESTER HAS NOT ALLEGED THAT THE PRESENT PROCUREMENT IS A SMALL PURCHASE OR THAT THE ITEMS BEING PROCURED HAVE BEEN ACQUIRED SUCCESSFULLY UNDER A PRIOR SMALL BUSINESS SET ASIDE. THEREFORE, WE CANNOT LEGALLY OBJECT TO THE NAVY'S FAILURE TO SET ASIDE THIS PROCUREMENT.

THE PROTEST IS SUMMARILY DENIED.

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