B-299291, MCS Portable Restroom Service, March 28, 2007

B-299291 Mar 28, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights MCS Portable Restroom Service (MCS), a service-disabled veteran-owned small business concern (SDVOSBC), protests the Air Force's decision not to set aside a requirement for SDVOSBCs or, alternatively, to make a sole-source award to an SDVOSBC, for portable chemical toilet services at the United States Air Force Academy and Farish Memorial Park in Colorado, and to instead obtain these services as a small business set-aside under invitation for bids (IFB) No. FA7000-07-B-0002. We sustain the protest. View Decision B-299291, MCS Portable Restroom Service, March 28, 2007 Decision Matter of: MCS Portable Restroom Service File: B-299291 Date: March 28, 2007 Merrill Austin for the protester. Christopher S. Cole, Esq., Department of the Air Force, and John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business Administration, for the agencies. Nora K. Adkins, Esq., Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Procuring agency is required to make reasonable efforts to ascertain whether an acquisition is suitable for a set-aside for service-disabled veteran-owned small business concerns (SDVOSBC) before it can proceed with a small business set-aside. 2. Procuring agency has the discretion to make a sole-source award to an SDVOSBC if the contracting officer does not have a reasonable expectation that two or more SDVOSBCs would submit bids for the work. DECISION MCS Portable Restroom Service (MCS), a service-disabled veteran-owned small business concern (SDVOSBC), protests the Air Force's decision not to set aside a requirement for SDVOSBCs or, alternatively, to make a sole-source award to an SDVOSBC, for portable chemical toilet services at the United States Air Force Academy and Farish Memorial Park in Colorado, and to instead obtain these services as a small business set-aside under invitation for bids (IFB) No. FA7000-07-B-0002. We sustain the protest. The IFB, issued as a 100-percent small business set-aside, sought a contractor to provide all management, tools, supplies, equipment and labor necessary for the portable chemical toilet services. The IFB provided for an 8-month base period, with 4 option years. As part of the market research for this acquisition, the contracting officer searched the Central Contractor Registration (CCR) database under North American Industry Classification System code 562991 (Septic Tank and Related Services), and located 28 SDVOSBCs, 29 section 8(a) concerns, 10 Historically Underutilized Business Zone (HUBZone) concerns, and 28 other small business concerns that potentially could perform the work. Agency Report (AR), Tab 6D, Market Research Summary, at 4. On February 14, 2006, the agency sent e-mails to all of these firms and received responses from two SDVOSBCs (MCS and a Florida company that expressed interest in developing a joint venture to perform this work), one HUBZone concern, and four small businesses. On April 18, the agency posted a –sources sought— notice on FedBizOpps and three companies responded: one small business, one women-owned small business, and MCS. Contracting Officer's (CO) Statement at 1. After considering this market research, the contracting officer determined that she did not have a reasonable expectation of receiving two or more bids from HUBZone or SDVOSBC concerns. AR, Tab 6D, Market Research Summary, at 6. Based on this determination and after receiving approval from the Air Force small business specialist to set aside the procurement for small businesses, AR, Tab 6C, Small Business Coordination Record, the agency, on August 8, posted a synopsis on FedBizOpps of the proposed solicitation for these services as a small business set'aside, that is, not one reserved for a subset of small businesses--either HUBZone or SDVOSBC concerns. MCS then filed an agency-level protest of this determination. MCS contended that the IFB should have been set aside for SDVOSBCs or, in the alternative, a sole'source award should have been made to MCS because it is an SDVOSBC. After receiving the protest, the contracting officer searched the CCR for all SDVOSBCs in Colorado and nationwide –to ensure that the market had not changed since the time the initial market research was conducted.— CO Statement at 2. This search revealed the existence of 2 SDVOSBCs in Colorado and 20 SDVOSBCs nationwide that could potentially perform the work. AR, Tab 6B, Letter from Air Force to MCS Denying Protest, Sept. 22, 2006, at 2. While it is not clear from the record whether the second CCR search identified firms that were previously identified in the initial CCR search, no efforts were made to contact any of these companies at that time.