BNUMBER:  B-272313
DATE:  September 23, 1996
TITLE:  SF & Wellness

**********************************************************************

Matter of:SF & Wellness

File:     B-272313

Date:September 23, 1996

Jay DelVecchio for the protester.
Lisa M. Carr for Four Star Fitness, an intervenor.
Karen Gearreald, Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that contracting agency failed to solicit incumbent contractor 
under simplified acquisition procedure is denied where record shows 
that rather than deliberately excluding the incumbent, the agency 
called the incumbent in an unsuccessful attempt to solicit its quote.

DECISION

SF & Wellness protests the issuance of a purchase order to Four Star 
Fitness under an oral request for quotations (RFQ) by the Department 
of the Navy for the teaching of aerobics classes during a 17-week 
period at the Little Creek Amphibious Base, Norfolk, Virginia.  SF, 
the incumbent contractor, alleges that the agency improperly failed to 
solicit the firm.  SF also argues that Four Star should have been 
eliminated from consideration.

We deny the protest.

On May 28, 1996, using simplified acquisition procedures as set forth 
in part 13 of the Federal Acquisition Regulation (FAR), the agency 
orally solicited six contractors from a list of recommended sources to 
obtain quotes to conduct certain aerobics classes commencing on July 
1.  The agency reports that on May 28, it called SF and left a message 
on the firm's answering machine concerning the requirement, but did 
not receive a response from SF.  The agency received the following 
quotes:

                         Four Star Fitness  --  $6,375
                         Fitness Education --  $7,650

While Fitness Education submitted a quote, it indicated that it did 
not have the time to perform the contract.  Four Star was determined 
to be responsible and reasonably priced and received the purchase 
order on May 29.  SF objects that despite its incumbent status, it was 
not contacted by the agency and was therefore improperly excluded from 
the competition.

Simplified acquisition procedures are excepted under the Federal 
Acquisition Streamlining Act of 1994 (FASA) from the general 
requirement that agencies obtain full and open competition through the 
use of competitive procedures.  10 U.S.C.  sec.  2304(a)(1)(A), (g)(1), and 
(g)(3) (1994).[1]  These simplified procedures are designed to promote 
efficiency and economy in contracting and to avoid unnecessary burdens 
for agencies and contractors.  To facilitate these stated objectives, 
FASA only requires that agencies obtain competition to the maximum 
extent practicable when they utilize simplified acquisition 
procedures.  Id.; 41 U.S.C.  sec.  427; see Omni Elevator, B-233450.2, Mar. 
7, 1989, 89-1 CPD  para.  248.  When using simplified acquisition 
procedures, contracting agencies are required to solicit quotations 
from a reasonable number of qualified sources to promote competition 
to the maximum extent practicable and ensure that the purchase is 
advantageous to the government based, as appropriate, on either price 
alone or price and other factors.  FAR  sec.  13.106-1(a)(1) (FAC 90-29); 
see S.C. Servs., Inc., B-221012, Mar. 18, 1986, 86-1 CPD  para.  266.  
Generally, for purchases under $25,000, as here, solicitation of three 
vendors is sufficient.  FAR  sec.  13.106-1(a)(3); Omni Elevator, supra.  
Under these procedures, where an agency receives a quotation from any 
one responsible small business concern at a responsible price, the 
contracting officer is to make an award to that concern.  FAR  sec.  
13.105(c)(3).

An agency's failure to solicit an incumbent contractor is not in 
itself a violation of the requirement to promote competition under 
simplified acquisition procedures.  S.C. Servs., Inc., supra.  What is 
determinative is whether the agency made a deliberate or conscious 
attempt to preclude the protester from competing.  Bosco Contracting, 
Inc., B-270366, Mar. 4, 1996, 96-1 CPD  para. 140.  Here, the record does 
not support the conclusion that the Navy deliberately attempted to 
exclude SF.  SF was listed on the available sources list, and the 
agency has provided an affidavit from the contract specialist 
indicating that on May 28 she called all six vendors listed as 
recommended sources, including SF.  The contract specialist states 
that when she received no response from the protester, she left a 
message on its answering machine.  In addition, the contract 
specialist's contemporaneous notes indicate that she placed a call to 
the protester at the appropriate telephone number and received no 
response.  The protester maintains that its office was manned all day 
on May 28, that it did not receive any call from the contract 
specialist, and that there was no message on its answering machine.  
Our Office conducted a telephone conference with the contract 
specialist and SF's Vice President during which both essentially 
reiterated these statements, and were unable to provide any additional 
relevant information.  Under the circumstances, we find that weight of 
the evidence in the record supports the agency's position that it 
attempted to obtain a quote from SF; the fact that it was unsuccessful 
in doing so is not evidence of any deliberate attempt to exclude SF, 
nor does it provide any basis to warrant resolicitation of the 
requirement.

SF also protests that Four Star's instructors do not have the required 
current aerobic certification from a recognized certification 
organization.  The record shows that the awardee provided evidence of 
aerobic certification, including current certification from the 
International Association of Fitness Professionals (IDEA ), one of the 
organizations specifically listed by the agency in the purchase order 
as an acceptable certification entity. Accordingly, this allegation is 
without merit.[2]

The protest is denied.

Comptroller General
of the United States

1. Prior to FASA, the Competition in Contracting Act of l984 (CICA), 
10 U.S.C.  sec.  2304(a)(1), (g)(1) (1988), similarly excepted procurements 
conducted under small purchase procedures from the full and open 
competition requirements.

2. The protester also initially asserted that Four Star should have 
been found ineligible for award because its sole owner's spouse is a 
government employee.  In its report, the Navy stated that it found no 
prohibited conflict of interest here because the  proprietor's spouse 
is an active-duty Navy lieutenant whose duties have no connection with 
the physical fitness program for employees of the Little Creek 
Amphibious Base, nor does the spouse have any involvement in the work 
of Four Star.  In addition, the Navy noted that the spouse is 
currently away from the base on a 6-month deployment, and the agency 
concluded that there is a complete separation between the ownership 
and control of the company and the spouse's performance of unrelated 
duties as a government employee.  The protester failed to address this 
determination and explanation in its comments; hence, we consider this 
protest ground to have been abandoned.  See Datum Timing, Div. of 
Datum Inc., B-254493, Dec. 17, 1993, 93-2 CPD  para.  328.