B-209933, JUN 6, 1983

B-209933, JUN 6, 1983

DIGEST: 1. PROTEST THAT PROCUREMENT SHOULD BE SET ASIDE FOR SMALL BUSINESSES IS DENIED BECAUSE THE DECISION WHETHER TO SET ASIDE A PARTICULAR PROCUREMENT IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY. 2. AGENCY'S DECISION TO PROCURE REQUIREMENT FOR THE OPERATION AND MAINTENANCE OF A GUNNERY RANGE BY COMPETITIVE NEGOTIATION RATHER THAN FORMAL ADVERTISING IS REASONABLE WHERE THE SERVICES NEEDED ARE TECHNICALLY COMPLEX AND THE GOVERNMENT IS UNABLE TO DRAFT ADEQUATE DESCRIPTIVE SPECIFICATIONS. 3. CONTRACTING AGENCY MAY PROPERLY CHARGE MODEST FEE FOR SOLICITATION DOCUMENTS TO COVER COSTS OF PROVIDING THEM, UNDER THE AUTHORITY OF THE USER CHARGE STATUTE, 31 U.S.C. SEC. 9701, FORMERLY 31 U.S.C. SEC. 483A (1976).

W. B. JOLLEY:

W. B. JOLLEY (JOLLEY) PROTESTS REQUEST FOR PROPOSALS NO. F04609-82-R 0058, ISSUED BY THE AIR FORCE, FOR THE OPERATION AND MAINTENANCE OF THE SUPERIOR VALLEY AIR-TO-GROUND GUNNERY RANGE AT GEORGE AIR FORCE BASE, CALIFORNIA.

JOLLEY ARGUES THAT THE PROCUREMENT SHOULD HAVE BEEN SET ASIDE FOR SMALL BUSINESSES, THAT IT SHOULD HAVE BEEN AN ADVERTISED RATHER THAN A NEGOTIATED PROCUREMENT, AND THAT IT WAS IMPROPER FOR THE AIR FORCE TO CHARGE PROSPECTIVE OFFERORS A $20 FEE FOR THE SOLICITATION DOCUMENTS.

THE PROTEST IS DENIED.

CONCERNING THE FIRST ISSUE, WITH EXCEPTIONS NOT RELEVANT HERE, NEITHER THE SMALL BUSINESS ACT NOR RELEVANT PROCUREMENT REGULATIONS REQUIRE THAT ANY PARTICULAR PROCUREMENT BE SET ASIDE FOR SMALL BUSINESSES. WHILE THE GOVERNMENT'S POLICY IS TO PLACE A FAIR PROPORTION OF PURCHASES WITH SMALL BUSINESSES, THE DECISION WHETHER TO SET ASIDE A PARTICULAR PROCUREMENT FOR SMALL BUSINESSES IS ONE WITHIN THE DISCRETION OF CONTRACTING AGENCIES. ROMAR CONSULTANTS, INC., B-206764, MARCH 29, 1982, 82-1 CPD 290.

JOLLEY ARGUES THAT THE PROCUREMENT SHOULD HAVE BEEN ADVERTISED RATHER THAN NEGOTIATED BECAUSE THE REQUIRED WORK IS NOT OVERLY COMPLEX AND BECAUSE SIMILAR WORK AT OTHER RANGES HAS BEEN ADVERTISED.

THE AIR FORCE CONTENDS THAT ADVERTISING WAS IMPRACTICABLE BECAUSE THE WORK IS MORE COMPLEX AND TECHNICAL THAN NORMAL BASE SERVICE CONTRACTS, THE REQUIREMENT IS NEW AND IS BEING COMPETED FOR THE FIRST TIME, AND THE STATEMENT OF WORK CANNOT DEFINE THE REQUIREMENTS WITH SUFFICIENT CLARITY TO PERMIT ADVERTISING.

THE AIR FORCE CITES 10 U.S.C. SEC. 2304(A)(10) (1976) AS AUTHORITY FOR NEGOTIATING THIS REQUIREMENT. THAT SECTION PROVIDES AN EXCEPTION TO THE STATUTORY PREFERENCE FOR THE USE OF ADVERTISING WHERE IT IS DETERMINED THAT IT IS "IMPRACTICABLE TO OBTAIN COMPETITION." OUR REVIEW OF DETERMINATIONS UNDER THIS EXCEPTION IS LIMITED TO ASCERTAINING WHETHER THERE IS A REASONABLE BASIS FOR THE DETERMINATION. SOUTHWEST MARINE, INC., B-204136, JULY 20, 1982, 82-2 CPD 60. IN DEL RIO FLYING SERVICE, B-197444, SEPTEMBER 4, 1980, 80-2 CPD 175, WE FOUND THAT THE USE OF NEGOTIATION WAS PROPER WHERE THE GOVERNMENT WAS BUYING TECHNICAL MAINTENANCE AND MANAGEMENT SERVICES AND WAS UNABLE TO DRAFT ADEQUATE DESCRIPTIVE SPECIFICATIONS. WE FIND THE CIRCUMSTANCES HERE TO BE SIMILAR TO THOSE IN DEL RIO AND, THEREFORE, FIND THE USE OF NEGOTIATION TO BE REASONABLE IN THIS CASE.

FINALLY, JOLLEY ARGUES THAT THE $20 CHARGE FOR SOLICITATION DOCUMENTS IS PROHIBITED BY SECTION 223(A) OF PUBLIC LAW 95-507, OCTOBER 24, 1978, 92 STAT. 1756, AND DISCOURAGES SMALL BUSINESS PARTICIPATION. THE AIR FORCE RESPONSE IS THAT NOTHING IN THE LAW OR IMPLEMENTING REGULATIONS PROHIBITS CHARGING THE FEE. ACCORDING TO THE AIR FORCE, THE FEE WAS INSTITUTED TO COVER A PORTION OF THE COSTS OF REPRODUCTION AND ADMINISTRATION INCURRED AS A RESULT OF THE LARGE NUMBER OF REQUESTS FOR THE SOLICITATION DOCUMENTS. THE AIR FORCE DENIES THAT SMALL BUSINESSES WERE DISCOURAGED FROM COMPETING AND, AS EVIDENCE, NOTES THAT SEVEN SMALL OR MINORITY BUSINESSES PAID FOR THE SOLICITATION DOCUMENTS.

WHILE SECTION 223(A) OF PUBLIC LAW 95-507 DOES STATE THAT A FEDERAL AGENCY "SHALL PROVIDE" BID DOCUMENTS TO ANY SMALL BUSINESS "UPON ITS REQUEST," WE FIND THAT THE $20 FEE CHARGED FOR THE SOLICITATION DOCUMENTS WAS NOT IMPROPER. SENATE REPORT NO. 95-1140, AUGUST 23, 1978, EXPLAINS THE PURPOSE OF THE PROVISION IN THE FOLLOWING WAY:

"THE PURPOSE OF SECTION 225 IS TO INSURE THAT SMALL BUSINESSES WHICH ARE CAPABLE OF PERFORMING WORK UNDER A CONTRACT ARE NOT DEPRIVED OF A CHANCE TO COMPETE FOR THAT CONTRACT DUE TO A LACK OF TIMELY PERTINENT INFORMATION.

"THIS SECTION IS NOT INTENDED TO ALLOW SMALL BUSINESSES ROUTINELY TO REQUEST COPIES OF EVERY SINGLE PROCUREMENT SOLICITATION AN AGENCY MAKES, NOR SHOULD IT BE CONSTRUED AS APPLYING TO CONTRACTS WHICH HAVE ALREADY BEEN AWARDED."

THUS, THE PURPOSE OF THE PROVISION IS TO ENSURE THAT SMALL BUSINESSES COULD OBTAIN BID DOCUMENTS WHEN THEY WANTED TO COMPETE. CONGRESS DID NOT INTEND TO IMPOSE A DUTY UPON THE AGENCY TO PROVIDE FREE COPIES OF THESE DOCUMENTS UPON REQUEST. WE THINK THAT THE CHARGING OF A MODEST FEE BY THE AGENCY IS NOT INCONSISTENT WITH THE PURPOSE OF THE PROVISION.

IN ADDITION, THE USER CHARGE STATUTE, 31 U.S.C. SEC. 9701, FORMERLY 31 U.S.C. SEC. 483A (1976), EXPRESSES THE SENSE OF CONGRESS THAT ANY WORK, SERVICE, PUBLICATION OR SIMILAR THINGS OF VALUE OR UTILITY PERFORMED BY FEDERAL AGENCIES BE SELF-SUSTAINING TO THE FULL EXTENT POSSIBLE, PROVIDED THAT NO LAW PROHIBITS THE COLLECTION OF A CHARGE FOR THE SERVICE. SINCE PUBLIC LAW 95-507 DOES NOT PROHIBIT SUCH A CHARGE, WE FIND THAT THE IMPOSITION OF A REASONABLE FEE FOR BID DOCUMENTS IS PERMITTED BY THE USER CHARGE STATUTE. IN BUILDING MAINTENANCE CORPORATION, B-184007, SEPTEMBER 24, 1975, 75-2 CPD 180, WE FOUND THAT THE USER CHARGE STATUTE PERMITTED THE CHARGING OF A FEE TO COVER THE EXPENSES OF PROVIDING A COPY OF THE BID ABSTRACT. THE CIRCUMSTANCES HERE ARE SUFFICIENTLY SIMILAR TO ALLOW APPLICATION OF THE PRINCIPLE OF THAT CASE.

ALSO, WE FIND IT DIFFICULT TO ACCEPT THE PROPOSITION THAT A $20 FEE WILL DETER ANY SERIOUS POTENTIAL BIDDER, AND THE NUMBER OF PAID REQUESTS (27) FOR SOLICITATION PACKAGES HERE SUPPORTS THAT VIEW.

PROTEST DENIED.