B-214915, MAY 29, 1984

B-214915, MAY 29, 1984

DIGEST: 1. CONTENTION THAT A SOLICITATION SEEKING BIDS TO PROVIDE LAUNDRY AND DRY CLEANING SERVICES IN A GOVERNMENT OWNED/CONTRACTOR-OPERATED (GOCO) FACILITY IS UNDULY RESTRICTIVE BECAUSE IT DOES NOT PERMIT BIDS ON A CONTRACTOR-OWNED/CONTRACTOR-OPERATED BASIS WILL NOT BE CONSIDERED BECAUSE THE DECISION TO HAVE THE SERVICES PERFORMED IN A GOCO FACILITY IS A MANAGEMENT/POLICY DETERMINATION FOR THE AGENCY TO MAKE AND IS NOT REVIEWABLE UNDER GAO'S BID PROTEST PROCEDURES. 2. REGULATION STATING THAT CONTRACTORS SHOULD FURNISH ALL FACILITIES NEEDED FOR THE PERFORMANCE OF GOVERNMENT CONTRACTS APPLIES TO CONTRACTS NORMALLY PERFORMED WITH A CONTRACTOR'S OWN FACILITIES AND IS NOT APPLICABLE TO CONTRACTS FOR THE OPERATION OF GOVERNMENT FACILITIES, WHICH NECESSARILY REQUIRES CONTRACTOR USE OF GOVERNMENT-OWNED FACILITIES AND EQUIPMENT. THUS, THE REGULATION DOES NOT PREVENT THE GOVERNMENT FROM CONTRACTING FOR THE OPERATION OF A GOVERNMENT OWNED LAUNDRY AND DRY CLEANING FACILITY. 3. GAO WILL NOT CONSIDER PROTEST AGAINST SMALL BUSINESS SIZE STANDARD IN SOLICITATION, SINCE SMALL BUSINESS ADMINISTRATION HAS THE EXCLUSIVE AUTHORITY TO RESOLVE SUCH MATTERS.

TRI-STATES SERVICE COMPANY:

TRI-STATES SERVICE COMPANY PROTESTS INVITATION FOR BIDS NO. DABT31 84-B- 0029, A SMALL BUSINESS SET-ASIDE SOLICITING BIDS TO PROVIDE LAUNDRY AND DRY CLEANING SERVICES AT FORT LEONARD WOOD, MISSOURI IN GOVERNMENT- OWNED/CONTRACTOR-OPERATED (GOCO) FACILITIES. TRI-STATES CONTENDS THAT THE SOLICITATION IS UNDULY RESTRICTIVE AND CONTRARY TO REGULATION BECAUSE IT DOES NOT PERMIT BIDS ON A CONTRACTOR-OWNED CONTRACTOR-OPERATED (COCO) BASIS. THE PROTESTER ALSO CONTENDS THAT THE SOLICITATION CONTAINS AN INCORRECT SMALL BUSINESS SIZE STANDARD. WE DISMISS THE PROTEST IN PART AND SUMMARILY DENY IT IN PART.

TRI-STATES ASSERTS THAT THE GOCO RESTRICTION UNFAIRLY EXCLUDES FIRMS SUCH AS ITSELF, THAT ARE UNABLE TO PERFORM ON A GOCO BASIS, FROM COMPETING UNDER THE SOLICITATION. IT ALSO ARGUES THAT THE CONTRACTING ACTIVITY IS REQUIRED TO CONDUCT AN OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR A-76 COST/BENEFIT STUDY TO DETERMINE WHETHER GOCO OR COCO PERFORMANCE IS MORE COST EFFECTIVE.

UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES, WE HAVE RECENTLY HELD THAT THE BASIC QUESTION INVOLVED HERE, WHETHER TO HAVE LAUNDRY AND DRY CLEANING SERVICES PERFORMED IN GOCO RATHER THAN COCO FACILITIES, IS AN EXECUTIVE BRANCH MANAGEMENT/POLICY MATTER WHICH IS FOR THE AGENCY TO DECIDE AND WHICH IS NOT PROTESTABLE UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 21. SEE CROWN LAUNDRY AND CLEANERS, INC., B-213796; B-213810, MAY 9, 1984, 84-1 CPD PARA. . CONSEQUENTLY, WE WILL NOT CONSIDER THIS PART OF TRI -STATES' PROTEST.

TRI-STATES ALSO CONTENDS THAT THE ARMY'S APPROACH VIOLATES DEFENSE ACQUISITION REGULATION (DAR) SEC. 13-301(A). AS WE STATED IN CROWN LAUNDRY AND CLEANERS, INC., SUPRA, WE DO NOT BELIEVE THAT DAR SEC. 13 301(A) IS APPLICABLE TO THE SITUATION HERE. WHILE THE REGULATION STATES THAT IT IS DEPARTMENT OF DEFENSE POLICY THAT CONTRACTORS SHOULD FURNISH ALL FACILITIES FOR THE PERFORMANCE OF GOVERNMENT CONTRACTS, THAT PROVISION IS CONCERNED WITH CONTRACTS, SUCH AS FOR MANUFACTURING, RESEARCH AND DEVELOPMENT, AND SERVICES, THAT NORMALLY WOULD BE PERFORMED BY CONTRACTORS WITH THEIR OWN FACILITIES (SEE, E.G., SOUTHWEST MARINE, INC.; TRIPLE "A" SOUTH, B-192251, NOV. 7, 1978, 78-2 CPD PARA. 329); IT HAS NO APPLICATION TO CONTRACTS FOR THE OPERATION OF GOVERNMENT FACILITIES FOR THE BENEFIT OF THE GOVERNMENT WHEN, OF NECESSITY, GOVERNMENT FACILITIES AND EQUIPMENT MUST BE USED. THUS, THIS PROVISION IN NO WAY IMPEDES THE GOVERNMENT FROM CONTRACTING FOR THE OPERATION OF ENTIRE FACILITIES, SEE, E.G., 53 COMP.GEN. 401 (1973); 52 COMP.GEN. 198 (1972); DATA TEST CORPORATION, B-193205, MAY 7, 1979, 79-1 CPD PARA. 312; BURNS AND ROE TENNESSEE, INC., B-189462, JULY 21, 1978, 78-2 CPD PARA. 57, OR OF ELEMENTS OF LARGER FACILITIES SUCH AS DINING HALLS (THROUGH MESS ATTENDANT SERVICES CONTRACTS), SEE, E.G., PALMETTO ENTERPRISES, 57 COMP.GEN. 271 (1978), 78-1 CPD PARA. 116, MOTOR POOLS, SEE CONTRACT SERVICES COMPANY, INC., B-211450, B-211569, JULY 7, 1983, 83-2 CPD PARA. 67; AND LAUNDRY AND DRY CLEANING PLANTS. SEE CROWN LAUNDRY AND DRY CLEANERS, INC., 61 COMP.GEN. 233 (1982), 82-1 CPD PARA 97.

FINALLY, REGARDING TRI-STATES' CONTENTION THAT THE SOLICITATION CONTAINS AN INCORRECT SMALL BUSINESS SIZE STANDARD, A CHALLENGE TO A SIZE STANDARD MUST BE FILED PRIOR TO BID OPENING WITH THE SMALL BUSINESS ADMINISTRATIONS'S (SBA) OFFICE OF HEARINGS AND APPEALS. DAR SEC. 1-703 (C)(2). SINCE SBA HAS EXCLUSIVE AUTHORITY TO RESOLVE QUESTIONS OF SMALL BUSINESS SIZE STANDARDS, 15 U.S.C. SEC. 637(B)(6) (1982), WE DO NOT CONSIDER CHALLENGES TO THE USE OF A PARTICULAR SIZE STANDARD. 4 C.F.R. SEC. 21.3(G)(2) (1984).

THE PROTEST IS DISMISSED IN PART AND SUMMARILY DENIED IN PART.