B-299545, Basic Concepts, Inc., May 31, 2007

B-299545 May 31, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Basic Concepts, Inc., a small business concern, protests the award of a contract for hazardous material spill containment units (or berms), National Stock Number (NSN) 4235-01-419-4798, by the Defense Logistics Agency (DLA) under the Small Business Administration's (SBA) section 8(a) business development program. The contract was awarded on a noncompetitive basis to Bowhead Manufacturing Company, following a decision by DLA to terminate an earlier award to Bowhead because of errors pointed out by the protester in an agency-level protest. Basic argues that the agency acted improperly in not holding a new competition for these units. We deny the protest. View Decision B-299545, Basic Concepts, Inc., May 31, 2007 Decision Matter of: Basic Concepts, Inc. File: B-299545 Date: May 31, 2007 Russell Guffee, Basic Concepts, Inc., for the protester. Edward R. Murray, Esq., Defense Logistics Agency, for the agency. Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Contracting agency's decision to satisfy its immediate requirements for hazardous spill containment units using a contract awarded under the Small Business Administration's section 8(a) business development program, while completing an ongoing competition reserved for small businesses, is unobjectionable where acquiring the items using the 8(a) program does not violate any statute or regulation. DECISION Basic Concepts, Inc., a small business concern, protests the award of a contract for hazardous material spill containment units (or berms)[1], National Stock Number (NSN) 4235-01-419-4798, by the Defense Logistics Agency (DLA) under the Small Business Administration's (SBA) section 8(a) business development program. The contract was awarded on a noncompetitive basis to Bowhead Manufacturing Company, following a decision by DLA to terminate an earlier award to Bowhead because of errors pointed out by the protester in an agency-level protest.[2] Basic argues that the agency acted improperly in not holding a new competition for these units. We deny the protest. BACKGROUND On October 25, 2005, the agency issued, as a small business set-aside, a solicitation seeking a long-term supplier for these berms. That solicitation is ongoing and both Basic and Bowhead are eligible to compete. As the more significant procurement continues, DLA reports that it has backorders for these units that cannot await completion of the ongoing competition. As a result, the agency issued, on October 17, 2006, an unrestricted solicitation for 177 small hazardous spill containment berms, identified as NSN 4235-01-419-4798. Agency Report (AR), Tab B-3. In addition to listing the NSN, the solicitation set forth the salient characteristics of the item, and identified--by manufacturer's part number--four approved products, including products manufactured by Basic and Bowhead. [3] Although it was not noticed until later, the manufacturer's part number listed in the solicitation for Bowhead's approved product was incorrect. Specifically, the solicitation listed Bowhead's –Snap-up— berm (Part No. B-040408-SU), rather than its –Throw N Go— berm (Part No. 4235014194798, which is the same number as the NSN). AR at 2. On November 1, Bowhead was awarded the contract based on its lowest price. As the solicitation requested, Bowhead offered to provide its –Snap-up— berm, rather than its –Throw N Go— berm. Basic filed an agency-level protest objecting to the award, arguing that Basic had a patent that prevented Bowhead from supplying the –Snap-up— berm. Although Bowhead conceded that it could not provide the –Snap-up— berm, it explained that it recognized the mistake in the solicitation, and in fact, planned to supply its –Throw N Go— berm instead. As a result, the agency decided to terminate Bowhead's award, as well as two other contracts for larger berms awarded to Bowhead on December 15 and 18.[4] By letter dated January 4, 2007, the agency advised both Basic and Bowhead that it was canceling the three awards, and that the agency would correct the item description to identify the Bowhead –Throw N Go— berm as an acceptable item and resolicit the requirement. AR, Tab 4, Letter from Agency to Basic and Bowhead dated Jan. 4, 2007. This letter also advised that the needed items were in short supply and that the agency would –likely again utilize urgent and compelling procedures— to fulfill its immediate requirements. Id. DLA explains that immediately after deciding to cancel the award, on January 9, 2007, Bowhead contacted the agency's Small Business Office to advise that it qualifies as an 8(a) firm, and that it was approved to supply both the small and large sizes of berms. AR, Tab G, Declaration of Procurement Analyst.