Tiger Enterprises, Inc., B-294973, January 4, 2005

B-294973 Jan 04, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Tiger Enterprises, Inc. protests the decision of the U.S. Marine Corps and Small Business Administration to contract with Class Act under the section 8(a) set-aside program for the lease and maintenance of washers and dryers for certain barracks at Camp Lejeune, North Carolina. We deny the protest. View Decision B-294973, Tiger Enterprises, Inc., January 4, 2005 Decision Matter of: Tiger Enterprises, Inc. File: B-294973 Date: January 4, 2005 Lillian K. Mauldin for the protester. J.R. Cohn, Esq., and Julius Rothlein, Esq., U.S. Marine Corps, and Kenneth Dodds, Esq., and John W. Klein, Esq., Small Business Administration, for the agencies. John L. Formica, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that Small Business Administration (SBA) improperly accepted a U.S. Marine Corps requirement for the lease of washers/dryers into the section 8(a) program is denied where the record supports the SBA's determination that the requirement is "new," and as such an adverse impact determination was not required. DECISION Tiger Enterprises, Inc. protests the decision of the U.S. Marine Corps and Small Business Administration (SBA) to contract with Class Act under the section 8(a) setaside program for the lease and maintenance of washers and dryers for certain barracks at Camp Lejeune, North Carolina. We deny the protest. Camp Lejeune is a Marine Corps training base where marines living in barracks do not have access to commercial laundry facilities. The Marine Corps thus leases washers and dryers for use by marines. The agency explains that "[a] substantial program of construction and renovation of barracks is ongoing at Camp Lejeune," and that "Marines must have washers and dryers available in their new quarters." Agency Report (AR) at 1-2. Over the past 10 years, the agency has competitively awarded successive contracts to two small businesses for the lease of washers/dryers at Camp Lejeune. AR, Tab 2, Chronology, at 1. A third contract for the washers/dryers was solicited as a small business set-aside; this contract, which was first awarded by the agency in August 2003, has been the subject of a number of protests, and has since been canceled. [2] The record reflects that in May and June 2004 four new/renovated barracks at Camp Lejeune became available for use, and the agency offered this requirement to the SBA for performance by a section 8(a) contractor. The Marine Corps explained to the SBA that the requirement was "new" because "no small-business set-aside vendor was working the four barracks," and that the requirement had not been part of the other solicitations or contracts for the lease and maintenance of washers/dryers at Camp Lejeune. AR, Tab11, Contracting Officer's Memorandum (July 28, 2004); Tab12, Letter from Contracting Officer to SBA (July 28, 2004). The SBA subsequently accepted the requirement into the section 8(a) program, and awarded a contract for the lease of washer/dryers for the four new/renovated barracks through the section 8(a) program to Class Act. AR, Tab 8, Class Act Contract; Tab 13, Letter from Contracting Officer to SBA (July 29, 2004). Tiger protests that the Marine Corps and SBA violated the regulations governing placement of work under SBA's section 8(a) program, arguing that contrary to the position of the Marine Corps and SBA, the requirement has effectively been included in the contracts previously awarded to small businesses for the lease and maintenance of washers/dryers at Camp Lejuene. In this regard, Tiger contends that although the four barracks at issue here are new or renovated, the previous contracts and solicitation included a clause providing for the relocation or removal of washers/dryers, and that requirements for washers/dryers at new or renovated barracks could be met through the use of this relocation or removal clause. The Small Business Act affords SBA and contracting agencies broad discretion in selecting procurements for inclusion in the section 8(a) program; we will not consider a protest challenging a decision to procure under the section 8(a) program unless the protester alleges possible fraud or bad faith on the part of government officials, or that specific laws or regulations have been violated. 4 C.F.R. 21.5(c)(2) (2004); C. Martin Co., Inc. , B-292662, Nov. 6, 2003, 2003 CPD 207 at 3. Under the Act's implementing regulations, SBA will not accept a procurement for award as a section 8(a) contract if doing so would have an adverse impact on an individual small business, a group of small businesses in a specific geographic location, or other small business programs. 13 C.F.R. 124.504(c) (2004). The purpose of the "adverse impact" concept is to protect other small businesses performing contracts outside the 8(a) program. Id. ; Grace Indus., Inc.