B-172888, JUL 15, 1971

B-172888, JUL 15, 1971

BID PROTEST - SMALL BUSINESS SET-ASIDE DECISION CONCERNING PROTEST OF STERILE FOOD PRODUCTS, INC. AGAINST AWARD OF CONTRACT UNDER RFP ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR VARIOUS DAIRY PRODUCTS FOR DELIVERY TO SEVERAL LOCATIONS IN TURKEY AND GREECE, TO OTHER THAN A SMALL BUSINESS CONCERN. AS ASPR AND SBA REGULATIONS CONCUR IN THE VIEW THAT PROVISIONS OF THE SMALL BUSINESS ACT DO NOT APPLY TO CONTRACTS WHICH ARE AWARDED AND PERFORMED IN FOREIGN COUNTRIES, NO LEGAL BASIS EXISTS FOR ALLOWING THE PROTEST AND IT IS THEREFORE DENIED.

TO STERILE FOOD PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1971, REQUESTING THAT CONSIDERATION BE GIVEN TO SETTING ASIDE REQUEST FOR PROPOSALS NO. F61355- 71-R-0073 FOR SMALL BUSINESS CONCERNS.

THE INSTANT SOLICITATION, ISSUED BY THE DEPARTMENT OF THE AIR FORCE ON APRIL 28, 1971, IN ANKARA, TURKEY, REQUESTED OFFERS FROM UNITED STATES FIRMS ONLY, REGARDLESS OF SIZE, FOR A REQUIREMENTS TYPE CONTRACT FOR NUMEROUS ITEMS OF RECOMBINED FILLED-MILK AND RELATED DAIRY PRODUCTS FOR DELIVERY TO SEVERAL LOCATIONS IN TURKEY AND GREECE.

YOU CONTEND THAT THERE IS ADEQUATE SMALL BUSINESS COMPETITION, AND CONSEQUENTLY THE PROCUREMENT SHOULD BE SET ASIDE FOR SMALL BUSINESS CONCERNS, REGARDLESS OF THE FACT THAT THE CONTRACT IS TO BE PERFORMED IN A FOREIGN COUNTRY. IN SUPPORT OF YOUR CONTENTION YOU CITE OUR DECISION, B- 171548-B-171912, ISSUED ON APRIL 30, 1971. INSOFAR AS THE HOLDINGS IN THAT DECISION ARE PERTINENT HERE, WE FOUND:

" *** THE INTENT OF THE SMALL BUSINESS ACT, 15 U.S.C. 631, ET SEQ., AND THE REGULATIONS PROMULGATED THEREUNDER IS TO BENEFIT AMERICAN SMALL BUSINESS CONCERNS, AND THE PLACE OF PERFORMANCE OF THE CONTRACTS AWARDED SUCH FIRMS IN THE FURTHERANCE OF THIS INTENT HAS NO BEARING PER SE ON THE LEGALITY OF THE DETERMINATION AS TO WHETHER A PARTICULAR PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART, FOR SMALL BUSINESS CONCERNS."

" *** CONSEQUENTLY, WE CAN PERCEIVE OF NO LEGAL BASIS TO INTERPOSE AN OBJECTION TO A SMALL BUSINESS SET-ASIDE THAT IS AWARDED WITHIN, BUT IS TO BE PERFORMED OUTSIDE, THE GEOGRAPHICAL AREAS ENUMERATED IN ASPR 1 700."

ASPR 1-700, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THIS PART, WHICH APPLIES ONLY IN THE UNITED STATES, ITS POSSESSIONS, PUERTO RICO, AND THE TRUST TERRITORY OF THE PACIFIC ISLANDS *** ."

IT IS THE POSITION OF THE CONTRACTING AGENCY THAT THE PROVISIONS OF THE SMALL BUSINESS ACT ARE NOT TO BE APPLIED TO CONTRACTS WHICH ARE AWARDED AND ARE TO BE PERFORMED IN FOREIGN COUNTRIES, AND THAT THE PROVISIONS OF ASPR 1-700 THEREFORE LIMIT SET-ASIDES TO PROCUREMENTS ACCOMPLISHED WITHIN THOSE GEOGRAPHICAL AREAS NAMED THEREIN. AS INDICATED BY THE REGULATIONS ISSUED BY SBA (SEE 13 CFR 127.15-2(A)) THAT ADMINISTRATION APPARENTLY CONCURS WITH THE PROVISIONS OF ASPR 1 700. WE SEE NO VALID BASIS FOR DISAGREEMENT WITH THE AGENCY'S INTERPRETATION OF ASPR 1-700, NOR DOES IT APPEAR THAT SUCH AN INTERPRETATION IS INCONSISTENT WITH OUR DECISION OF APRIL 30, 1971, CITED ABOVE.

IN VIEW THEREOF, AND SINCE IT HAS CONSISTENTLY BEEN OUR POSITION THAT THE DECISION AS TO WHETHER A CERTAIN PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART FOR SMALL BUSINESS CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCIES INVOLVED, WE ARE IN NO POSITION TO ACCEDE TO YOUR REQUEST THAT CONSIDERATION BE GIVEN TO SETTING THE INSTANT PROCUREMENT ASIDE FOR SMALL BUSINESS CONCERNS, OR IN SUGGESTING THAT SUCH ACTION BE CONSIDERED BY THE PROCURING AGENCY.