B-311244, IBV, Ltd., February 21, 2008

B-311244 Feb 21, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights IBV, Ltd. protests the Department of the Air Force's decision to issue request for proposals (RFP) No. FA4416-08-R-0003, for collection and removal of solid waste, as a total small business set-aside. IBV, a service-disabled veteran-owned small business concern (SDVOSBC), asserts that the agency should have set aside the procurement for SDVOSBCs or awarded the firm a contract on a sole-source basis. We deny the protest. View Decision B-311244, IBV, Ltd., February 21, 2008 Decision Matter of: IBV, Ltd. File: B-311244 Date: February 21, 2008 H. Wendell Gardner for the protester. Maj. John G. Terra, and Col. Neil S. Whiteman, Department of the Air Force, for the agency. Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Decision to set aside procurement for small business participation instead of service-disabled veteran-owned small business concerns (SDVOSBC) was unobjectionable where, prior to making decision, contracting officer concluded that agency would not receive fair market price in offers from SDVOSBCs and conclusion was confirmed when all SDVOSBC proposals received, including protester's, significantly exceeded agency's estimate and prices proposed by non-SDVOSBCs. DECISION IBV, Ltd. protests the Department of the Air Force's decision to issue request for proposals (RFP) No. FA4416-08-R-0003, for collection and removal of solid waste, as a total small business set-aside. IBV, a service-disabled veteran-owned small business concern (SDVOSBC), asserts that the agency should have set aside the procurement for SDVOSBCs or awarded the firm a contract on a sole-source basis. We deny the protest. The RFP contemplated the award of a fixed-price contract for non-hazardous waste refuse collection, transportation, and disposal services at Andrews Air Force Base, Maryland, and related sites, for a period of 8 months, with 4 option years. The incumbent contractor is a small business and the contracting officer, with the concurrence of the agency's small business specialist, determined to set the RFP aside for small business concerns. In order to enhance competition, the contracting officer decided not to further restrict the procurement to SDVOSBCs. Based on her knowledge of the market, the contracting officer was concerned that SDVOSBCs would not provide fair market prices. Contracting Officer's Declaration, para. 5. The RFP, as amended, advised prospective offerors that the annual estimated price range for all requirements was $3-$8 million. Prior to the closing time for receipt of proposals, IBV filed this protest. Under the SDVOSBC procurement program, a contracting officer may restrict competition to SDVOSBCs if he or she has a reasonable expectation that not fewer than two such firms will submit offers and that the award can be made at a fair market price. 15 U.S.C. sect. 657f(b) (Supp. IV 2004); Federal Acquisition Regulation (FAR) sect. 19.1405(a), (b). Prior to proceeding with a small business set-aside, a procuring agency is required to make reasonable efforts to ascertain whether an SDVOSBC set-aside is appropriate. MCS Portable Restroom Serv., B'299291, Mar. 28, 2007, 2007 CPD para. 55 at 5. Although the use of any particular method of assessing the availability of firms for a set-aside is not required, measures such as prior procurement history, market surveys, and advice from the agency's small business specialist may all constitute adequate grounds for a contracting officer's decision to set aside, or not to set aside, a procurement. National Linen Serv., B-285458, Aug. 22, 2000, 2000 CPD para. 138 at 2. Generally, our Office regards such a determination as a matter of business judgment that we will not disturb absent a clear showing that it has been abused. Id. IBV asserts that the contracting officer did not make a reasonable effort to ascertain whether an SDVOSBC set-aside was suitable. This argument is without merit. While the record shows that at least two SDVOSBC firms were available and interested in competing on this requirement, this is only the first of two considerations that go into a set-aside decision. In addition, the contracting officer must have a reasonable expectation that award will be made at a fair market price. 15 U.S.C. sect. 657f(b); FAR sect. 19.1405(a), (b). Here, as noted above, the contracting officer did not set the requirement aside because she did not expect to receive fair market prices from SDVOSBCs, and there is nothing in the record to demonstrate that her expectations were unreasonable. In this regard, while IBV disagrees with her decision, it has not provided any evidence that it and at least one other SDVOSBC would or could have provided fair market prices.