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.