B-199945, MAR 2, 1981

B-199945, MAR 2, 1981

DIGEST: CONTRACTING OFFICER DID NOT UNREASONABLY DETERMINE OFFERS WOULD BE RECEIVED FROM SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS WHERE RECORD INDICATES THAT BIDS FROM SEVERAL SMALL BUSINESSES WERE RECEIVED IN THREE PRIOR PROCUREMENTS. PROTESTER'S SUMMARY CONCLUSION THAT ONLY ONE SMALL BUSINESS BIDDER WAS CAPABLE OF PERFORMING CONTRACT DOES NOT ESTABLISH THAT CONTRACTING OFFICER ABUSED HER DISCRETION SINCE CONTRACTING OFFICER WAS NOT REQUIRED TO DETERMINE RESPONSIBILITY OF PROSPECTIVE BIDDERS BEFORE DECIDING TO SET ASIDE PROCUREMENT.

BURRELLE'S PRESS CLIPPING SERVICE:

BURRELLE'S PRESS CLIPPING SERVICE (BURRELLE) PROTESTS THE SOLICITATION BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF PRESS CLIPPING SERVICES UNDER INVITATION FOR BID (IFB) NO. WFC-A3-R-4444-8-26 80, ISSUED AS A TOTAL SMALL BUSINESS SET-ASIDE.

FROM 1977 TO 1979, TWO TO FIVE SMALL BUSINESS FIRMS SUBMITTED BIDS IN RESPONSE TO UNRESTRICTED SOLICITATIONS BY GSA FOR PRESS CLIPPING SERVICES. BURRELLE WAS AWARDED THE CONTRACT IN 1977. IN 1978 AND 1979, THE CONTRACT WAS AWARDED TO INTERNATIONAL PRESS CLIPPING BUREAU, INC., A SMALL BUSINESS FIRM. THE CONTRACTING OFFICER THEN DECIDED TO SET ASIDE THE 1980 PROCUREMENT FOR SMALL BUSINESS CONCERNS. NO AWARD HAS YET BEEN MADE.

BURRELLE CONTENDS THE PROCUREMENT SHOULD NOT HAVE BEEN SET ASIDE FOR SMALL BUSINESS CONCERNS ON THE GROUND THERE WAS NO REASONABLE EXPECTATION THAT OFFERS WOULD BE OBTAINED FROM A SUFFICIENT NUMBER OF SMALL BUSINESS CONCERNS AT REASONABLE PRICES. BURRELLE ARGUES THAT SINCE 1977 ONLY ONE SMALL BUSINESS BIDDER WAS CAPABLE OF PERFORMING THE CONTRACT, AND THUS THE TOTAL SMALL BUSINESS SET-ASIDE DETERMINATION CONSTITUTED AN ABUSE OF DISCRETION BY THE CONTRACTING OFFICER.

GSA DENIES THE CONTRACTING OFFICER ACTED UNREASONABLY IN DECIDING TO SET ASIDE THE PROCUREMENT. GSA INDICATES IT RECEIVED BIDS FROM FIVE SMALL BUSINESSES IN 1977, TWO IN 1978, AND FOUR IN 1979, AND CONSEQUENTLY THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO THINK THE SAME WOULD NOT BE TRUE FOR THE 1980 PROCUREMENT.

FOR A TOTAL SMALL BUSINESS SET-ASIDE, FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-1.706-5(A)(2) REQUIRES THAT THERE BE A REASONABLE EXPECTATION THAT BIDS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES. PAST PROCUREMENT HISTORY IS AN IMPORTANT FACTOR TO CONSIDER IN DETERMINING WHETHER ADEQUATE COMPETITION MAY BE EXPECTED. OTIS ELEVATOR COMPANY, B-196540, MAY 6, 1980, 80-1 CPD 327. HOWEVER, THE CONTRACTING OFFICER IS NOT REQUIRED TO MAKE RESPONSIBILITY DETERMINATIONS ON PROSPECTIVE SMALL BUSINESS BIDDERS BEFORE DECIDING TO SET ASIDE PROCUREMENTS FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION. FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA; ONAN CORPORATION, B-195431, JUNE 23, 1980, 80-1 CPD 438.

THE DECISION TO SET ASIDE A PROCUREMENT IS BASICALLY A BUSINESS JUDGMENT WITHIN THE BROAD DISCRETION OF THE CONTRACTING OFFICER FOR WHICH WE WILL NOT SUBSTITUTE OUR JUDGMENT, AND WE WILL SUSTAIN SUCH A DETERMINATION ABSENT A CLEAR SHOWING OF ABUSE OF DISCRETION. OTIS ELEVATOR COMPANY, B-196076, FEBRUARY 1, 1980, 80-1 CPD 86.

WE BELIEVE THE CONTRACTING OFFICER REASONABLY DETERMINED THAT BIDS FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS WOULD BE RECEIVED. THE RECORD INDICATES BIDS FROM SEVERAL SMALL BUSINESSES HAD BEEN RECEIVED UNDER THE THREE EARLIER PROCUREMENTS. FURTHER, EVEN IF WE ASSUME, AS BURRELLE ARGUES, THAT ALL BUT ONE OF THE SMALL BUSINESS BIDDERS WERE "JOBBERS, MIDDLEMEN, CONSULTANTS, ETC." AND WERE NOT DIRECTLY INVOLVED IN THE PRESS CLIPPINGS BUSINESS, THE CONTRACTING OFFICER'S CONCLUSION THAT THERE WAS A REASONABLE EXPECTATION OF SUFFICIENT COMPETITION AMONG THESE BIDDERS WOULD BE REASONABLE. SEE HEIN-WERNER CORPORATION, B-195747, MAY 2, 1980, 80-1 CPD 317. IN ANY EVENT, THERE IS NO SUPPORT IN THE RECORD BEYOND BURRELLE'S SUMMARY STATEMENT THAT NONE OF THE OTHER BIDDERS WOULD HAVE BEEN ABLE TO PERFORM THE CONTRACT. BURRELLE THUS HAS FAILED TO DEMONSTRATE THAT THE CONTRACTING OFFICER'S DECISION TO SET ASIDE THE PROCUREMENT CONSTITUTED AN ABUSE OF DISCRETION.

THE PROTEST IS DENIED.