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B-232303, Aug 26, 1988, 88-2 CPD 187

B-232303 Aug 26, 1988
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Highlights

PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review PROCUREMENT - Socio-Economic Policies - Small business set-asides - Use - Restrictions DIGEST: Protest that agency was required by Federal Acquisition Regulation Sec. 19.501(g) to issue solicitation as small business set-aside because previous requirement had been successfully acquired on basis of small business set-aside is dismissed where record shows previous procurement was not a small business set-aside. MLB contends that the set-aside for SDB is not permissible because this service previously has been acquired successfully by the contracting officer on the basis of a small business set-aside. Be acquired on the basis of a repetitive set aside. /1/ The Army has advised our Office that the previous requirement was not competed as a small business set-aside.

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B-232303, Aug 26, 1988, 88-2 CPD 187

PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review PROCUREMENT - Socio-Economic Policies - Small business set-asides - Use - Restrictions DIGEST: Protest that agency was required by Federal Acquisition Regulation Sec. 19.501(g) to issue solicitation as small business set-aside because previous requirement had been successfully acquired on basis of small business set-aside is dismissed where record shows previous procurement was not a small business set-aside.

MLB Professional Services:

MLB Professional Services objects to the Department of the Army's decision to issue, as a small disadvantaged business (SDB) set-aside, solicitation No. DAHC77-88-B-1058 for mess attendant services at Schofield Barracks, Hawaii. MLB contends that the set-aside for SDB is not permissible because this service previously has been acquired successfully by the contracting officer on the basis of a small business set-aside. MLB contends that Federal Acquisition Regulation (FAR) Sec. 19.501(g) (FAC 84-37) requires a small business set-aside in these circumstances. FAR Sec. 19.501(g) provides that once a product or service has been acquired successfully by a contracting office on the basis of a small business set- aside, all future requirements of that Office for that particular product or service shall, if required by agency regulations, be acquired on the basis of a repetitive set aside. /1/

The Army has advised our Office that the previous requirement was not competed as a small business set-aside. The Administration (SBA) under the section 8(a) program established by the Small Business Act, 15 U.S.C. Sec. 637(a) (1982), and were awarded to an 8(a) firm. The Army offered this follow-on requirement to the SBA. By letter of July 14, 1988, the SBA advised the Army that the incumbent contractor has graduated from the 8(a) program and recommended that the Army set aside the procurement for SDBs. Under these circumstances, since the previous requirement was not acquired under a small business set-aside, the Army was not required to set aside this solicitation for small businesses.

The protest is dismissed.

/1/ We note that a Department of Defense interim rule published in the Federal Register on February 19, 1988, precludes the use of a SDB set- aside where the product or service successfully has been acquired previously under a small business set-aside. Interim rule Sec. 219.502 72(b)(1), 53 Fed.Reg. 5,123 (1988) (to be codified at 48 C.F.R. Sec. 219.502-72(b)(1)).

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