Fluid Power International, Inc., B-278479, December 10, 1997

B-278479 Dec 10, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester's quote under a small business-small purchase set-aside was properly rejected where it did not offer the product of a small business as required by the nonmanufacturer rule applicable to this solicitation. Is reserved exclusively for small business concerns in accordance with the set-aside procedures of Federal Acquisition Regulation (FAR) subpart 19.5. This requirement is known as the "nonmanufacturer rule.". The nonmanufacturer rule may be waived where the acquisition is for a product in a class for which the Small Business Administration (SBA) has determined that there are no small business manufacturers in the Federal market. The contracting officer determines that there are no known domestic small business manufacturers that can reasonably be expected to offer a product meeting the requirements of the solicitation. View Decision Matter of: Fluid Power International, Inc. File: B-278479 Date: December 10, 1997 DIGEST Attorneys DECISION Fluid Power International, Inc., (FPI) protests the actions of the National Aeronautics and Space Administration (NASA) with regard to request for quotations (RFQ) No. 1-067-GGI.2049 for an in-line filter assembly to be installed in a wind tunnel at NASA's Langley Research Center. We dismiss the protest. Under the simplified acquisition procedures being used here, an acquisition of supplies that has an anticipated dollar value exceeding $2,500 and not exceeding $100,000, as anticipated here, is reserved exclusively for small business concerns in accordance with the set-aside procedures of Federal Acquisition Regulation (FAR) subpart 19.5. FAR Sec. 13.105(a). The RFQ, pursuant to FAR Sec. 19.508(c), incorporated the required Notice of Total Small Business Set-Aside, FAR Sec. 52.219-6, which provides that, for a small business set-aside, a small business concern submitting an offer in its own name agrees to furnish, in performing the contract, only end items manufactured or produced by itself or other domestic small business concerns; this requirement is known as the "nonmanufacturer rule." FAR Sec. 19.001, 19.102(f)(1). The nonmanufacturer rule may be waived where the acquisition is for a product in a class for which the Small Business Administration (SBA) has determined that there are no small business manufacturers in the Federal market, FAR Sec. 19.102(f)(4), or where, for a specific acquisition, the contracting officer determines that there are no known domestic small business manufacturers that can reasonably be expected to offer a product meeting the requirements of the solicitation, FAR Sec. 19.102(f)(5), and the SBA, in response to the contracting officer's request, waives the requirement with respect to that solicitation, FAR Sec. 19.502-2(c). An SBA waiver implemented in the solicitation permits a small business to provide any firm's product in response to the solicitation. Id.; see Adrian Supply Co., B-257261, Sept. 15, 1994, 95-1 CPD Para. 21 at 3. The solicitation at issue here is not for a product in a class for which the SBA has waived the nonmanufacturer rule. The contracting officer reports that she did not seek a waiver of the nonmanufacturer rule from SBA for this RFQ because she could not determine that there were no small business manufacturers of the solicited item. NASA received three quotes in response to this RFQ. Pall Advance Separations Systems, a large business, submitted the low quote and FPI the second lowest quote. FPI's quote offered Pall's product. NASA issued the purchase order to Pall. When FPI brought Pall's large business status to the attention of NASA, the order was cancelled. NASA determined that FPI's quote was unacceptable and FPI was ineligible for award because FPI was a small business nonmanufacturer, but it offered an end item manufactured by a large business, which was prohibited by the RFQ. Since the third offeror, a small business concern, also proposed the product of a large business, the contracting officer concluded that NASA had received no acceptable offers from responsible small business concerns. Thus, the contracting officer decided to withdraw the small business set-aside, cancel the RFQ, and resolicit on an unrestricted basis. FPI was so informed and protested to our Office. Notwithstanding that FPI certified in its quote that it is a small business concern, its quote was predicated on furnishing a product manufactured by Pall, a large business. Thus, NASA properly considered FPI's quote unacceptable because it was not offering to comply with the nonmanufacturer rule under this total small business set-aside, which, unless waived, requires that the product of a small business be offered. See Innovative Refrigeration Concepts, B-258655, Feb. 10, 1995, 95-1 CPD Para. 61 at 4-5; Food Tech Indus. Co., Inc., B-232791, Oct. 25, 1988, 88-2 CPD Para. 392 at 1-2.