Ocuto Blacktop & Paving Company, Inc., B-286800, February 21, 2001

B-286800 Feb 21, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Army Corps of Engineers' issuance of a solicitation for environmental remediation work at a closed military base as a competitive 8(a) set-aside was consistent with Defense Federal Acquisition Regulation Supplement subpart 226.71. Where there was a reasonable expectation that offers would be received from 8(a) eligible concerns located in the vicinity of the work. The statute relevant here is codified at 10 U.S.C. 2687 note (1994). The contracting officer shall- (a) Determine whether there is a reasonable expectation that offers will be received from responsible business concerns located in the vicinity of the military installation that is being closed or realigned. (b) If offers can not be expected from business concerns in the vicinity. View Decision Matter of: Ocuto Blacktop & Paving Company, Inc. File: B-286800 Date: February 21, 2001 DIGEST Attorneys DECISION Ocuto Blacktop & Paving Company, Inc. protests the terms of request for proposals (RFP) No. DACA41-01-R-0002, a competitive set-aside for section 8(a) eligible concerns, /1/ issued by the United States Army Corps of Engineers for environmental remediation work at the former Griffiss Air Force Base (AFB), Rome, New York. Ocuto complains that the solicitation did not properly apply the preference for businesses located in the vicinity of Griffiss AFB, as required by section 2912 of the National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat. 1547, and Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 226.7103(c), for work associated with closing or realigning military installations. We deny the protest. The statute relevant here is codified at 10 U.S.C. 2687 note (1994), and provides, in pertinent part: (a) Preference required.--In entering into contracts with private entities as part of the closure or realignment of a military installation under a base closure law, the Secretary of Defense shall give preference, to the greatest extent practicable, to qualified businesses located in the vicinity of the installation and to small business concerns and small disadvantaged business concerns. Contracts for which this preference shall be given shall include contracts to carry out activities for the environmental restoration and mitigation at military installations to be closed or realigned. The statute thus establishes a preference for local, small, and small disadvantaged businesses, but does not establish a priority among these three groups. See Ocuto Blacktop & Paving Co., Inc., B-284165, Mar. 1, 2000, 2000 CPD 32 at 3 n.1. /2/ DFARS Sec. 226.7103 states: In considering acquisitions for award through the section 8(a) program (Subpart 219.8 and [Federal Acquisition Regulation] FAR Subpart 19.8) or in making set-aside decisions under Subpart 219.5 and FAR Subpart 19.5 for acquisitions in support of a base closure or realignment, the contracting officer shall- (a) Determine whether there is a reasonable expectation that offers will be received from responsible business concerns located in the vicinity of the military installation that is being closed or realigned. (b) If offers can not be expected from business concerns in the vicinity, proceed with section 8(a) or set-aside consideration as otherwise indicated in Part 219 and FAR Part 19. (c) If offers can be expected from business concerns in the vicinity- (1) Consider section 8(a) only if the 8(a) contractor is located in the vicinity. /3/ (2) Set aside the acquisition for small business only if one of the expected offers is from a small business located in the vicinity. The 8(a) program has both competitive and noncompetitive components, depending upon the dollar value of the requirement. See 13 C.F.R. Sec. 124.501(b) (2000). Where, as here, the acquisition value exceeds $3 million, any 8(a) contract must be competed among 8(a) firms; 8(a) acquisitions of less than $3 million must be noncompetitive awards. FAR Sec. 19.805-1(a)(2); 13 C.F.R. Sec. 124.506(a). In addition, according to the SBA, its regulations allow for a competitive 8(a) acquisition for construction limited to 8(a) eligible concerns in a certain geographical area where the agency solicitation provides for such a limitation. See SBA Comments (Feb. 15, 2001); 13 C.F.R. Sec. 124.507(c)(2), (3). The agency issued this solicitation, as a competitive nationwide 8(a) set-aside, contemplating a single award of an indefinite-delivery/indefinite-quantity contract on October 31, 2000, for base realignment and closure environmental remediation projects at Griffiss AFB. /4/ The contract to be awarded was for a 3-year base period with a single 2-year option for task orders up to a cumulative total of $15 million. The technical evaluation factors listed in descending order of importance were company experience, past performance, management plan, and an evaluation preference for businesses.