Ervin and Associates, Inc., B-279161; B-279162; B-279187; B-

Ervin and Associates, Inc., B-279161; B-279162; B-279187; B- BNUMBER: B-279161; B-279162; B-279187; B-279188 DATE: April 20, 1998 TITLE: Ervin and Associates, Inc., B-279161; B-279162; B-279187; B- 279188, April 20, 1998 ********************************************************************** Matter of:Ervin and Associates, Inc. File: B-279161; B-279162; B-279187; B-279188 Date:April 20, 1998 John J. Ervin for the protester. Shari Weaver, Esq., and Michael J. Farley, Esq., Department of Housing and Urban Development, for the agency. Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. General Accounting Office will not consider allegation that Department of Housing and Urban Development's use of the section 8(a) program to meet its needs for various types of services is unconstitutional in light of Adarand Constructors, Inc. v. Pe�a and City of Richmond v. J. A. Croson Co. because neither decision constitutes clear judicial precedent on the constitutionality or legality of the contracting agency's use of this program. 2. General Accounting Office will not consider challenge to contracting agency's use of section 8(a) set-aside solicitations as part of its procurement strategy where there is no showing that regulations may have been violated or of possible bad faith on the part of government officials. DECISION Ervin and Associates, Inc. protests the Department of Housing and Urban Development's (HUD) decision to satisfy its requirements for two categories of services--due diligence services for HUD's Housing Programs and comprehensive services for the Assistant Secretary for Housing-Federal Housing Commissioner--by issuing, for each category of services, one solicitation set aside for participants in the Small Business Administration's (SBA) section 8(a) program and one solicitation subject to full and open competition. Ervin argues that HUD's use of the section 8(a) program to satisfy its needs is unconstitutional and that HUD's parallel procurement strategy is otherwise improper. We deny the protests. Section 8(a) of the Small Business Act authorizes SBA to enter into contracts with government agencies and to arrange for the performance of such contracts by awarding subcontracts to socially and economically disadvantaged small business contractors. 15 U.S.C. sec. 637(a) (1994). HUD has historically obtained due diligence services[1] through section 8(a) set-aside contracts. HUD's most recent due diligence contracts recently expired and, in preparing the follow-on procurement, HUD realized that its need for due diligence services had significantly increased from the initial needs it identified in late 1995. HUD decided that it was in the government's best interest to obtain maximum competition to satisfy this increased capacity. To this end, HUD implemented a parallel procurement strategy that would enable it to continue sponsoring section 8(a) business development opportunities by soliciting for due diligence services at the previous level under the section 8(a) program, and to meet its expanded requirements for these services by soliciting on a full and open basis. Request for proposals (RFP) Nos. DU100C000018600 and DU100C000018561, the set-aside and unrestricted solicitations, respectively, were issued on November 21, 1997. Each solicitation anticipates the award of multiple indefinite-quantity task order contracts, and each contains the same statement of work. RFPs sec. B-1(b), B-2, I-16, L-4, C. Each solicitation guarantees a minimum order of $250,000 per contract and a maximum of $30 million per contract. RFPs sec. B-3. Each solicitation states that multiple awardees will be provided a fair opportunity to be considered for award of each task order, pursuant to Federal Acquisition Regulation (FAR) sec. 16.505 (FAC 97-02),[2] and sets forth the same procedures for such consideration. RFPs sec. H-4. HUD has historically obtained the comprehensive administrative, professional, accounting, financial, and auditing support services for overseeing all Federal Housing Administration programs and operations through separate contracts, each of which was set aside under the section 8(a) program. The services continue to be a significant requirement and are now being consolidated. HUD explains that, in furtherance of its commitment to providing maximum practicable contracting opportunities to small disadvantaged business contractors, it planned to procure a portion of the required services under the section 8(a) program and a portion on a full and open basis. RFP Nos.