Protest of Small Business Set-Aside Contract Award

The protester contested the award of a small business set-aside contract to another offeror on the grounds that, as a woman-owned business, it was entitled to special preference among other companies bidding on contracts offered under a small business set-aside; that the contracting officer improperly considered transportation costs in evaluating proposals; that award of the contract without making use of time available to conduct negotiations was improper; and that the capacity of the offeror awarded the contract to meet the delivery requirements should be reviewed. The small business set-aside program made no provision for preferences under the total small business set-aside. Thus, the contracting officer would have been without the legal authority to give special preference to a firm controlled by a woman. The protester was correct in pointing out that transportation costs were not referred to in the request for proposals (RFP) and that its proposal was displaced as the lowest cost proposal for one item when transportation costs were added. However, it would have been improper for the contracting officer to evaluate proposals for this particular contract without consideration of transportation costs because the RFP specified the destination for supplies and requested origin point shipping information. It was determined that the contracting officer acted reasonably in not using the time remaining in the offer acceptance period for negotiations since delays in the issuance of the RFP in this case reduced the actual time available for conforming to the production schedules of other contractors. Furthermore, Standard Form 33A did advise offerors of the possibility that award might be made on the basis of initial offers received without discussions. There was no evidence to suggest that discussions were held with any offeror. The question of whether the production capacity of the offeror awarded the contract was adequate to meet the solicitation's delivery requirements could not be reviewed without a showing of fraud or the presence of definitive responsibility criteria in the solicitation, neither of which were shown in this case. The protest was denied.