Aldevra

B-411752 Oct 16, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Aldevra, of Portage, Michigan, a small business, protests the terms of request for quotations (RFQ) No. 999313, issued by the Department of the Army, National Guard Bureau, Kansas Air National Guard for an ice machine and water dispenser. The protester contends that the agency improperly failed to set aside the solicitation for small business concerns. We deny the protest. We deny the protest. View Decision Decision Matter of:  Aldevra File:  B-411752 Date:  October 16, 2015 Rodney Marshall for the protester. Maj. Michael G. Pond, Department of the Army; Michael D. Tully, Esq., General Services Administration; and John W. Klein, Esq., and Sam Q. Le, Esq., Small Business Administration, for the agencies. Paula A. Williams, Esq., Jennifer D. Westfall-McGrail, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency was required by statute to set aside a Federal Supply Schedule order valued at approximately $4,300 is denied where statute and implementing regulations specifically provide that decision whether to set aside such an order is within the discretion of the contracting agency. DECISION Aldevra, of Portage, Michigan, a small business, protests the terms of request for quotations (RFQ) No. 999313, issued by the Department of the Army, National Guard Bureau, Kansas Air National Guard for an ice machine and water dispenser.  The protester contends that the agency improperly failed to set aside the solicitation for small business concerns. We deny the protest. The RFQ, issued on June 29, 2015, contemplates the issuance of a delivery order for an ice machine/water dispenser on a brand name or equal basis.  The solicitation was issued via the General Services Administration’s (GSA) e-Buy portal pursuant to the Federal Supply Schedule (FSS) procedures in Federal Acquisition Regulation (FAR) Subpart 8.4.  The requirement, which has a value of approximately $4,300, was not set aside for small business competition.  Prior to the scheduled closing time for receipt of quotations on July 9, Aldevra, which holds an FSS contract, protested to our Office. Aldevra contends that there are multiple small businesses, including several holding FSS contracts, capable of providing the desired item.  Accordingly, the protester argues, section 15(j) of the Small Business Act, 15 U.S.C. § 644(j), dictates that the contemplated order be set aside for small businesses.  This section provides in relevant part as follows: (1)Each contract for the purchase of goods and services that has an anticipated value greater than $2,500 but not greater than $100,000[1] shall be reserved exclusively for small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and are competitive with regard to the quality and delivery of the goods or services being purchased. 15 U.S.C. § 644(j)(1).  This set-aside mandate has been implemented under Federal Acquisition Regulation (FAR) § 19.502-2, Total small business set-asides.  The gist of the protester’s argument, which is supported by the Small Business Administration (SBA),[2] is that because the above order has a value between $3,000 and $150,000, § 644(j) requires that it be set aside for small businesses unless market research establishes that competitive offers from two or more small businesses cannot reasonably be expected.  As explained below, we disagree.  In 2010, Congress amended the Small Business Act to address small business set‑asides under multiple award contracts.  Specifically, section 1331 of the Small Business Jobs Act of 2010, Pub. L. 111-240 (hereinafter, the Jobs Act), added the following provision to section 15 of the Small Business Act: (r) MULTIPLE AWARD CONTRACTS.—Not later than 1 year after the date of enactment of this subsection, the Administrator for Federal Procurement Policy and the Administrator, in consultation with the Administrator of General Services, shall, by regulation, establish guidance under which Federal agencies may, at their discretion—      (1) set aside part or parts of a multiple award contract for small business concerns, including the subcategories of small business concerns identified in subsection (g)(2);      (2) notwithstanding the fair opportunity requirements under section 2304c(b) of title 10, United States Code, and section 303J(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C.