Matter of:Ruchman and Associates, Inc.

B-275956 Apr 23, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Is not an abuse of discretion where the market survey conducted by the agency did not support the expectation that small business concerns could provide the required services at a fair market price. RAI contends that the solicitation should have been issued as a small business set-aside. Must be set aside for exclusive small business participation when there is a reasonable expectation of receiving offers from at least two responsible small business concerns and that award will be made at a fair market price. The use of any particular method of assessing the availability of small businesses is not required so long as the agency undertakes reasonable efforts to locate responsible small business competitors. View Decision Matter of: Ruchman and Associates, Inc. File: B-275956 Date: April 23, 1997 DIGEST Attorneys DECISION Ruchman and Associates, Inc. (RAI) protests the decision of the National Science Foundation (NSF) to issue request for proposals (RFP) No. DAS 96041 for a publications clearinghouse on an unrestricted basis. RAI contends that the solicitation should have been issued as a small business set-aside. We deny the protest. Under Federal Acquisition Regulation (FAR) Sec. 19.502-2(b) (FAC 90-44), a procurement with an anticipated dollar value of more than $100,000, such as the one at issue here, must be set aside for exclusive small business participation when there is a reasonable expectation of receiving offers from at least two responsible small business concerns and that award will be made at a fair market price. Unless such a determination can be made, a total small business set-aside should not be issued. FKW Inc., B-249189, Oct. 22, 1992, 92-2 CPD Para. 270, at 2. The use of any particular method of assessing the availability of small businesses is not required so long as the agency undertakes reasonable efforts to locate responsible small business competitors; in this regard, factors that may constitute adequate grounds for not setting aside a procurement include prior procurement history, nature of the contract, market surveys, and/or advice from the agency's technical specialists. Id. We regard a decision whether to set aside a procurement as a matter of business judgment within the contracting officer's discretion; consequently, our review generally is limited to ascertaining whether that official abused his or her discretion. CardioMetrix, B-271012, May 15, 1996, 96-1 CPD Para. 227, at 2. In this case, NSF reports that after conducting an extensive market survey, the agency's technical specialists advised the contracting officer not to restrict this procurement to small businesses. The contracting officer concurred in the technical specialists' recommendation for the following reasons. First, the publications clearinghouse requirement is a first-time effort for NSF, which issues approximately 1.7 million publications per year. Instead of simply warehousing paper publications at a government site, as is its current practice, NSF wants to consolidate its warehousing needs with a commercial bulk mail/electronic catalog system operation that will both disseminate publications to the public and convert the majority of the current paper publications to an electronic format. NSF also envisions that the inventory, bulk mailing, and dissemination process will be managed and accomplished via an electronic, computerized process. Although several small businesses--such as RAI--are capable of successful document storage, the NSF technical specialists questioned whether there were two small business concerns capable of actual publication "fulfillment"--an industry term used to refer to the sophisticated technology necessary to accomplish the electronic inventory, conversion, and dissemination services. The NSF technical specialists also questioned whether there was a small business capable of managing the volume of NSF's requirement. Because of these concerns, the NSF technical specialists conducted the following market survey. First, the technical specialists contacted several agencies with similar clearinghouse operations involving comparable size and technology--the National Institutes of Health (NIH) and the Congressional Budget Office (CBO). Each agency provided the technical specialists with a list of industry sources, one of which was a small business. The NSF technical specialists contacted the identified small business but were told that because of the size of this requirement, the small business was not capable of maintaining the proposed clearinghouse operation.