BNUMBER: B-270576.2
DATE: December 15, 1995
TITLE: PI Construction Corporation
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Matter of:PI Construction Corporation
File: B-270576.2
Date: December 15, 1995
Paralee White, Esq., and G. Brent Connor, Esq., Cohen & White, for the
protester.
Gregory Petkoff, Esq., and Richard P. Castiglia, Jr., Esq., Department
of the Air Force, for the agency.
Ronald Berger, Esq., Office of the General Counsel, GAO, participated
in the preparation of the decision.
DIGEST
Contracting officer properly may delete small disadvantaged business
(SDB) set-aside provisions from request for proposals, after proposals
have been received and evaluated, pursuant to a memorandum suspending
the SDB set-aside provisions of the applicable regulations which
requires such deletion except in cases where that would unduly delay a
procurement.
DECISION
PI Construction Corporation protests the Department of the Air Force's
elimination, after the receipt of proposals, the small disadvantaged
business (SDB) set-aside provisions of solicitation No.
F04608-95-R-0001. PI contends that the Air Force could not properly
take that action.
We dismiss the protest.
The Department of Defense (DOD) established the SDB preference program
primarily under authority of section 1207 of the National Defense
Authorization Act of 1987, 10 U.S.C. 2301 note (1994). The Act left
to DOD's discretion the promulgation of regulations and procedures
necessary to achieve the Act's stated objectives of awarding 5 percent
of the dollar value of DOD's contracts to SDB concerns. G&D Foods,
Inc., B-233511 et al., Feb. 7, 1989, 89-1 CPD 125.
On October 23, 1995, the Under Secretary of Defense issued a directive
suspending certain provision of the Defense Federal Acquisition
Regulation Supplement in light of the decision in Adarand
Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995).[1] The directive
provided, in pertinent part, that:
"Until further notice contracting officers shall not set aside
acquisitions for [SDBs]. This suspension is effective
immediately. Contracting officers should amend solicitations
that have been issued to remove a set-aside that was based on the
suspended sections where the amendment of the solicitation will
not unduly delay a procurement such that deliveries under the
resultant contract would not be received when required."
Pursuant to that directive, the contracting officer issued an
amendment to the solicitation on November 22, which removed the SDB
set-aside provisions. The procurement was also again synopsized in
the Commerce Business Daily; the synopsis announced a new unrestricted
procurement for the same requirement.
PI contends that since proposals had already been received (the
proposal due date was August 14) when the directive was issued, it
does not apply to this procurement. PI asserts that the suspension
"applied only to . . . outstanding solicitations for which the due
date for proposals had not yet passed." PI further asserts that
because the procurement "had proceeded . . . to the evaluation and
award stages . . . there existed no outstanding solicitation to
amend." We find no merit to these assertions.
First, by it own terms the Under Secretary's memorandum is not limited
to solicitations under which proposals had not yet been received. The
memorandum requires removal of the SDB set-aside provisions from all
solicitations unless that would unduly delay a procurement. Here, the
Air Force determined that there would be no such undue delay.
Moreover, the fact that proposals had been received and evaluated does
not mean that the solicitation could not be amended. It is
well-settled that a request for proposals can be amended at any time
prior to award. See, e.g., Federal Acquisition Regulation 15.606.
The protest is dismissed.
Comptroller General
of the United States
1. In Adarand, the Supreme Court held that racial classifications must
be subject to strict scrutiny and must serve a compelling government
interest and be narrowly tailored to further that interest.