E.L. Enterprises, Inc.

B-271251.2 Jul 22, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that procurement should have been restricted to Indian firms is denied where contracting officials did not abuse discretion. Solicitation provision is not unduly restrictive of competition where it's inclusion is mandatory under the Federal Acquisition Regulation and. Both technical and business proposals are required. Proposals were due on April 15. Our Office will review set-aside decisions only where there is a prima facie showing of a possible abuse of discretion. This argument is without merit. IHS was also aware of ELE's interest in the contract. Determined that ELE also was not a viable prospective offeror since it too had never provided dental services. Which is a list of qualified Indian firms in different service categories. View Decision Matter of: E.L. Enterprises, Inc. File: B-271251.2 Date: July 22, 1996 The Buy Indian Act confers broad discretion on contracting officials to set aside procurements for exclusive participation of Indian firms when practicable, but does not require that particular contracts be set aside for Indian firms; protest that procurement should have been restricted to Indian firms is denied where contracting officials did not abuse discretion. Solicitation provision is not unduly restrictive of competition where it's inclusion is mandatory under the Federal Acquisition Regulation and, in any case, it does not preclude the protester from competing. Attorneys DECISION E.L. Enterprises, Inc. protests the terms of request for proposals (RFP) No. 246-96-R-0002, issued by the Oklahoma City Area office of the Indian Health Service (IHS), Public Health Service (PHS), Department of Health & Human Services (HHS), for dental management services and general dental services for Indian clients in Oklahoma and parts of Kansas and Nebraska. We deny the protest. The RFP contemplates award of a fixed-price, requirements contract for three types of services: (1) claims processing and report generation related to dental services provided at IHS facilities by dentists performing under a pre-existing contract unrelated to this protest (fee- for-clinic services); (2) claims processing and report generation related to dental laboratory services provided under a pre-existing contract unrelated to this protest; and (3) general dental services (including claims processing and report generation) to be provided through a network of dentists under contract to the successful offeror, in response to referrals made by IHS facilities (fee-for-service services). Both technical and business proposals are required, award to be made to the responsible offeror whose proposal represents the best value to the government. ELE filed this protest on April 12, 1996. Proposals were due on April 15; ELE did not submit a proposal. SET-ASIDE ELE argues that the agency's failure to set this procurement aside exclusively for Indian-owned concerns constituted an abuse of discretion. The Buy Indian Act, 25 U.S.C. Sec. 47 (1994), establishes Indian preferences and confers broad discretionary authority to negotiate exclusively with Indian contractors. However, it leaves set-aside decisions to the discretion of the agency, and does not require particular procurements to be set aside. Indian Resources Int'l, Inc., B-256671, July 18, 1994, 94-2 CPD para. 29. [1] Accordingly, our Office will review set-aside decisions only where there is a prima facie showing of a possible abuse of discretion. See Adams Mechanical, B-235280, May 11, 1989, 89-1 CPD para. 447. ELE asserts that the agency abused its discretion here in that it failed to make a good faith effort to locate qualified Indian firms and wrongly found ELE and another Indian firm, ESTE Medical Services, Inc., unqualified. This argument is without merit. The agency clearly made a reasonable effort to identify potential Indian concern offerors. IHS published a "sources sought" synopsis in the November 27 edition of the Commerce Business Daily (CBD). One Indian firm, ESTE, responded, but the capability statement provided by the firm showed that the firm had a limited corporate history and had never provided dental services. IHS was also aware of ELE's interest in the contract, but determined that ELE also was not a viable prospective offeror since it too had never provided dental services. IHS also consulted the "Oklahoma City Area Indian Health Service Buy Indian Certified Firms List," dated October 3, 1995, which is a list of qualified Indian firms in different service categories; no Indian firms were listed as qualified dental services providers.