BNUMBER:  B-272174; B-272177
DATE:  October 2, 1996
TITLE:  PI Construction Company

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Matter of:PI Construction Company

File:     B-272174; B-272177

Date:October 2, 1996

Paralee White, Esq., and Joseph A. Zillo, Esq., Cohen & White, for the 
protester.
David R. Kohler, Esq., Small Business Administration, Marian E. 
Sullivan, Esq., Department of the Air Force, and Maj. Michael J. 
O'Farrell, Jr., Department of the Army, for the agencies.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Small Business Administration failed to follow its published 
regulatory implementation of the statutory requirement that 8(a) 
construction contracts be awarded to 8(a) concerns located within the 
county or state where the work will be performed by imposing 
geographic restrictions linking the eligibility of an 8(a) concern to 
compete for such contracts with the location at which the 8(a) concern 
maintains its principal place of business, as opposed to a branch 
office.

DECISION

PI Construction Company protests as unduly restrictive of competition 
the geographic restriction contained in request for proposals (RFP) 
No. F04626-96-R-0105, issued by Travis Air Force Base, Department of 
the Air Force, in California, and RFP No. DABT31-96-R-0003, issued by 
Fort Leonard Wood, Department of the Army, in Missouri.

We sustain the protests.

The RFPs were issued by the Air Force and Army as competitive small 
disadvantaged business set-asides under section 8(a) of the Small 
Business Act, 15 U.S.C.  sec.  637(a) (1994), for construction 
requirements.  In accepting the respective Air Force and Army 
requirements for competition in the 8(a) program, the SBA directed 
that competition under the Air Force procurement be limited to 8(a) 
concerns serviced by eight SBA District Offices and one SBA Branch 
Office in Arizona, California, Nevada, and Hawaii (SBA Region IX), and 
that competition under the Army procurement be limited to 8(a) 
concerns serviced by two SBA District Offices in Missouri (SBA Region 
VII).  The SBA stated that "[a]ll other firms [would be] deemed 
ineligible to submit offers."  In accordance with the SBA's direction, 
the Air Force and Army included the specified geographic restrictions 
in the synopses published in the Commerce Business Daily.

The protester, an 8(a) concern with its principal place of business in 
Denver, Colorado, but which also maintains a branch office with at 
least one full-time employee in the appropriate geographic areas in 
California and Missouri, recognizes that the Small Business Act, 15 
U.S.C.  sec.  637(a)(11), requires "[t]o the maximum extent practicable" 
that 8(a) construction contracts "be awarded within the county or 
State where the work is to be performed."  In this regard, the 
protester does not question the regulatory authority of the SBA to 
impose geographic restrictions for construction requirements.  
However, the protester argues that the SBA's regulatory implementation 
of this statutory provision provides no basis for the SBA to restrict 
8(a) competitions for construction requirements according to an 8(a) 
concern's principal place of business, defined at 13 C.F.R.  sec.  124.100 
(1996) as "the location at which the business records of the [8(a)] 
concern are maintained and the location at which the individual who 
manages the concern's day-to-day operations spends the majority of 
his/her working hours."

In this regard, the protester points out that in June 1995, the SBA 
promulgated new regulations governing the 8(a) program.  These 
regulations provide as follows:

        "Construction competitions.  Where a construction requirement 
        offered to the 8(a) program exceeds the           $3 million 
        competitive threshold, SBA will determine, based on its 
        knowledge of the 8(a) portfolio, whether the competition 
        should be limited only to those Program Participants located 
        within the geographical boundaries of one or more SBA district 
        offices, an entire SBA regional office, or adjacent SBA 
        regional offices.  Only those Participants located within the 
        appropriate geographical boundaries are eligible to submit 
        offers."  13 C.F.R.  sec.  124.311(g)(3).  (Emphasis added.)

The SBA does not define in its new regulations the basis upon which an 
8(a) program participant would be considered "located within the 
appropriate geographical boundaries" in order to be deemed eligible to 
compete.[1]

The protester also references the SBA's preamble to its regulations, 
as published in the Federal Register, 60 Fed. Reg. 29,969, 29,971 
(June 7, 1995), which addresses the statutory requirement that 8(a) 
construction contracts be awarded to 8(a) concerns located within the 
county or state where the work will be performed.  The SBA explained 
in its preamble that competition for 8(a) construction requirements 
would be limited:

        "to those Program Participants within the geographical 
        boundaries of one or more SBA district offices.  SBA believes 
        that a Program Participant may be considered as being located 
        within a geographical boundary if it regularly maintains an 
        office which employs at least one full-time individual within 
        that geographical boundary."  (Emphasis added.)

In light of the SBA's statement in its preamble, the protester 
contends that regardless of the fact that it maintains its principal 
place of business in Colorado, it should be considered eligible to 
compete under each of the referenced 8(a) solicitations since it 
regularly maintains a branch office with at least one full-time 
employee within the appropriate geographic areas in California and 
Missouri, as designated by the SBA.

The SBA responds that while it announced a "general statement of 
policy" in the preamble, specifically, that "it might in appropriate 
cases apply a less restrictive definition of the term 'located within 
the geographic boundaries'" to include 8(a) concerns which regularly 
maintain an office with at least one full-time employee within a 
designated geographic area, it is not required to use this "more 
expansive" definition in all cases and will do so in its discretion 
when practicable or when necessary to provide developmental assistance 
to 8(a) concerns unable to effectively compete on a national basis.

Section 8(a) of the Small Business Act, 15 U.S.C.  sec.  637(a), authorizes 
the SBA to enter into contracts with government agencies and to 
arrange for performance through subcontracts with socially and 
economically disadvantaged small business concerns; Federal 
Acquisition Regulation  sec.  19.805 (FAC 90-8) and 13 C.F.R.  sec.  124.311 
provide for and govern competitively awarded contracts set aside for 
section 8(a) qualified concerns.  Because of the broad discretion 
afforded to the SBA and the contracting agencies under the applicable 
statute and regulations, our review of actions under the section 8(a) 
program is generally limited to determining whether government 
officials have violated applicable regulations or engaged in bad 
faith.  See Bid Protest Regulations, 4 C.F.R.  sec.  21.5(b)(3) (1996).  
Here, we conclude that the SBA's decision to link the eligibility of 
an 8(a) concern to compete for 8(a) construction contracts to the 
geographic location where the 8(a) concern maintains its principal 
place of business, as opposed to a branch office, is not consistent 
with the SBA's published regulatory implementation of the statutory 
requirement that such contracts be awarded within the county or state 
where the work will be performed.  Moreover, subsequent internal 
agency action by the SBA regarding its published regulatory 
implementation was inconsistent with the notice and comment 
requirements of the Administrative Procedure Act (APA), 5 U.S.C.  sec.  
553, as adopted by the SBA at 13 C.F.R.  sec.  101.108.

There is no question that the SBA has authority to impose geographic 
restrictions in furtherance of its program needs.  See, e.g., Border 
Maintenance Serv., Inc., 72 Comp. Gen. 101 (1993), 93-1 CPD  para.  97, 
recon. denied, 72 Comp. Gen. 265 (1993), 93-1 CPD  para.  473.  Here, the 
SBA, at 13 C.F.R.  sec.  124.311(g)(3), simply provides that only 8(a) 
program participants "located within the appropriate geographical 
boundaries" are eligible to compete for 8(a) construction contracts.  
In its regulations the SBA does not define this phrase or otherwise 
place 8(a) concerns on notice that in certain circumstances, as a 
prerequisite to competing for these contracts, an 8(a) concern may be 
required to maintain its principal place of business, as opposed to a 
branch office, in the designated geographic areas where the work will 
be performed.  However, the SBA clearly states in its regulatory 
preamble that an 8(a) concern "may be considered as being located 
within a geographical boundary if it regularly maintains an office 
which employs at least one full-time individual within that 
geographical boundary."  Although the SBA characterizes the 
definitional language in its preamble as a non-binding, discretionary 
statement of policy which essentially can be ignored in light of its 
use of the term "may," we do not agree.

The preamble to a regulation should be considered in construing and in 
determining the meaning of the regulation.  See Wiggins Bros., Inc. v. 
Dep't of Energy, 667 F.2d 77 (Temp. Emer. Ct. App. 1981).  Under 
federal rules of construction of legislative regulations, definitions 
in a preamble may not be ignored.  Id.  While the term "may" in a 
regulation is generally construed as permissive, rather than 
mandatory, the construction of such term--whether discretionary or 
mandatory--is reached in each case on the context of the regulation 
and on whether it is fairly to be presumed that it was the intention 
of the agency to confer discretion or to impose an imperative 
requirement.  See United Hosp. Center, Inc. v. Richardson, 757 F.2d 
1445 (4th Cir. 1985).  Courts have often interpreted "may" as 
connoting a mandatory meaning.  Id.

Despite the SBA's use of the term "may," we conclude that the 
structure and the context of the regulatory preamble sentence at issue 
is one of definition, not one creating discretion.  This sentence 
begins with a declaratory phrase, "SBA believes that," followed by the 
SBA actually defining those 8(a) concerns which it believes are 
located within a designated geographic area, specifically, not only 
8(a) concerns headquartered in these areas, but also 8(a) concerns 
with branch offices in these areas.[2]  This preamble language fills 
the definitional void in the regulations themselves, and it is the 
preamble which reflects the SBA's intent regarding the basis for a 
determination of the eligibility of an 8(a) concern to compete for 
8(a) construction requirements.  We believe the SBA has provided no 
persuasive reason to ignore the definition in its preamble which 
supports the protester's position that because it maintains a branch 
office in each of the designated geographic areas, it should be 
considered eligible to compete under the referenced 8(a) 
solicitations.

Moreover, subsequent internal agency action by the SBA belies its 
position that it has discretion to ignore the definition of the phrase 
"located within the appropriate geographical boundaries," as provided 
in its regulatory preamble.  In this regard, on August 7, 1995, just 2 
months after the effective date of the SBA's new regulations governing 
the 8(a) program, the SBA issued an internal agency procedural notice 
stating that:

        "[t]he SBA published a final rule in the Federal Register on 
        June 7, 1995, that contained two sentences that should not 
        have appeared.  A correction to the June 7, 1995, final rule 
        will be published to delete the following sentences:  'SBA 
        believes that a Program Participant may be considered as being 
        located within a geographical boundary if it regularly 
        maintains an office which employs at least one full-time 
        individual within that geographical boundary.'"  (Emphasis 
        added.)[3]

The SBA reports that its original inclusion of the preamble language 
under discussion was "inadvertent," and it has not yet issued a 
subsequent Federal Register notice deleting this language.  The SBA 
explains that it has:

        "decided to see whether the subject language [in the preamble] 
        could help it achieve its objective of promoting sufficient 
        competition to assure adequate performance at a fair price 
        within those local buy areas where SBA would otherwise 
        increase the size of the local buy area.

        "The Agency has not yet completed its examination of that 
        question.  If the language has no substantial affect on our 
        ability to insure sufficient competition to assure adequate 
        performance at a fair price within local buy areas, or if the 
        administration of the program with this language in it becomes 
        excessively burdensome or confusing, it is likely that SBA 
        will rescind the language.  If, on the other hand, SBA finds 
        that the language stimulates competition and enhances the 
        quality of 8(a) performance in local areas, SBA will likely 
        retain the language."

The SBA's internal implementation of a change to a published 
regulatory definition which impacts the basis upon which the SBA 
determines the eligibility of 8(a) concerns to compete for 8(a) 
construction requirements is inconsistent with the SBA's commitment to 
follow the public notice and comment procedures of the APA.  In this 
regard, the SBA states that it "will follow the public participation 
requirements of the [APA], 5 U.S.C.  sec.  553, in rulemakings relating to 
public property, loans, grants, benefits, or contracts."  13 C.F.R.  sec.  
101.108.  Public participation requirements include notice and comment 
procedures.  See Analysas Corp. v. Bowles, 827 F. Supp. 20 (D. D.C. 
1993) (SBA did not justify its failure to comply with the notice and 
comment requirements of the APA).  In other words, absent prior public 
notice, we do not think that 8(a) concerns, like the protester, could 
reasonably expect based on the SBA's published regulatory 
implementation that the SBA would be deciding on a 
solicitation-by-solicitation basis whether 8(a) concerns with branch 
offices only in the designated geographic areas would be considered 
eligible to compete for 8(a) construction requirements.

While we recognize that the SBA has discretion to promulgate a 
different, less expansive definition of the phrase "located within the 
appropriate geographical boundaries," even placing 8(a) concerns on 
notice that if the SBA determines that an appropriate level of 
competition exists in a designated geographic area, a prerequisite to 
competing may be a requirement that the 8(a) concern be headquartered 
in this area, we conclude that such a change in the published 
regulatory implementation must be accomplished not internally, but 
rather in accordance with the public rulemaking requirements of the 
APA, as adopted by the SBA at 13 C.F.R.  sec.  101.108.

For the reasons discussed, and by letter of today to the Administrator 
of the SBA, we are recommending, based on the SBA's published 
regulatory implementation, that the SBA afford the protester and other 
8(a) concerns similarly situated, that is, those having branch offices 
as opposed to principal places of business in the designated 
geographic areas, an opportunity to compete under each of the 
referenced 8(a) solicitations.  The SBA should advise the Air Force 
and Army to amend the basis for competition for the respective 
requirements.  We also recommend that the SBA reimburse the protester 
for the costs of filing and pursuing its protests, including 
reasonable attorneys' fees.[4]  4 C.F.R.  sec.  21.8(d).

The protests are sustained.

Comptroller General
of the United States

1. The SBA defines a "[p]rogram [p]articipant" as "a small business 
concern participating in the [8(a) Program]."  13 C.F.R.  sec.  124.100.  A 
program participant is serviced "in the field office serving the 
territory in which the concern's principal place of business, as 
defined in [13 C.F.R.]  sec.  124.100, is located."  13 C.F.R.  sec.  124.203.

2. In this sentence, the word "believes," not "may," is the operative 
verb.

3. The second sentence to be deleted addresses the award of sole 
source 8(a) construction contracts based on the same branch office 
geographic restriction.

4. In its report filed in response to each of these protests, the SBA 
expressly states that the geographic restrictions in the referenced 
solicitations are the SBA's, not the Air Force's or Army's.