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B-201852, FEB 9, 1981

B-201852 Feb 09, 1981
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DIGEST: DETERMINATION WHETHER TO SET ASIDE PROCUREMENT UNDER SECTION 8(A) OF SMALL BUSINESS ACT IS MATTER FOR CONTRACTING AGENCY AND SBA AND WILL NOT BE REVIEWED BY GAO ABSENT SHOWING OF FRAUD OR BAD FAITH ON PART OF GOVERNMENT OFFICIALS. SSI CONTENDS THAT SINCE THE CONTRACT IS CURRENTLY BEING PERFORMED BY A NON-8(A) CONCERN AND TRADITIONALLY HAS BEEN SOLICITED ON A SMALL BUSINESS SET-ASIDE BASIS. THE CONTRACTING OFFICER IS AUTHORIZED "IN HIS DISCRETION" TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS MAY BE AGREED UPON BY THE PROCURING AGENCY AND SBA. WE DO NOT REVIEW AGENCY DETERMINATIONS TO SET ASIDE PROCUREMENTS UNDER SECTION 8(A) UNLESS THERE IS A SHOWING OF BAD FAITH OR FRAUD ON THE PART OF GOVERNMENT OFFICIALS.

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B-201852, FEB 9, 1981

DIGEST: DETERMINATION WHETHER TO SET ASIDE PROCUREMENT UNDER SECTION 8(A) OF SMALL BUSINESS ACT IS MATTER FOR CONTRACTING AGENCY AND SBA AND WILL NOT BE REVIEWED BY GAO ABSENT SHOWING OF FRAUD OR BAD FAITH ON PART OF GOVERNMENT OFFICIALS.

SPACE SERVICES INTERNATIONAL CORPORATION:

SPACE SERVICES INTERNATIONAL CORPORATION (SSI) PROTESTS UNDER SOLICITATION NO. DABT47-81-R-0003 THE SETTING ASIDE OF A FOOD SERVICES CONTRACT AT FORT JACKSON, SOUTH CAROLINA, UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT. SSI CONTENDS THAT SINCE THE CONTRACT IS CURRENTLY BEING PERFORMED BY A NON-8(A) CONCERN AND TRADITIONALLY HAS BEEN SOLICITED ON A SMALL BUSINESS SET-ASIDE BASIS, THE DEPARTMENT OF THE ARMY SHOULD CONTINUE TO PROCURE THESE SERVICES UNDER A SMALL BUSINESS SET-ASIDE.

SECTION 8(A) OF THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 637(A) (SUPP. III, 1979), AUTHORIZES THE SMALL BUSINESS ADMINISTRATION (SBA) TO ENTER INTO CONTRACTS WITH ANY GOVERNMENT AGENCY WITH PROCURING AUTHORITY AND TO ARRANGE THE PERFORMANCE OF SUCH CONTRACTS BY LETTING SUBCONTRACTS TO SOCIALLY AND ECONOMICALLY DISADVANTAGED SMALL BUSINESS CONCERNS. THE CONTRACTING OFFICER IS AUTHORIZED "IN HIS DISCRETION" TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS MAY BE AGREED UPON BY THE PROCURING AGENCY AND SBA. IN LIGHT OF THIS BROAD DISCRETION, WE DO NOT REVIEW AGENCY DETERMINATIONS TO SET ASIDE PROCUREMENTS UNDER SECTION 8(A) UNLESS THERE IS A SHOWING OF BAD FAITH OR FRAUD ON THE PART OF GOVERNMENT OFFICIALS. MAINTENANCE, INCORPORATED, B-199854, AUGUST 27, 1980, 80-2 CPD 155. NO SUCH SHOWING HAS BEEN MADE HERE. THEREFORE, WE HAVE NO BASIS TO CONSIDER SSI'S OBJECTION TO THE DECISION TO SET ASIDE THIS PROCUREMENT UNDER THE 8(A) PROGRAM.

PROTEST DISMISSED.

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