BNUMBER:  B-275974 
DATE:  April 25, 1997
TITLE: Matter of:Ruchman and Associates, Inc. 

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Matter of:Ruchman and Associates, Inc.

File:     B-275974

Date:April 25, 1997

Neal H. Ruchman for the protester.
Dorothy L. Foley, Esq., Department of Justice, for the agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's determination not to set procurement aside for small business 
concerns was proper where agency reasonably concluded--based on the 
amount, scope, and nature of the services required, and concurrence of 
the Small and Disadvantaged Business Utilization Officer--that it 
could not expect to receive proposals from at least two responsible 
small business offerors at fair market prices. 

DECISION

Ruchman and Associates, Inc. (RAI) protests the Department of 
Justice's (DOJ) decision to issue request for proposals (RFP) No. 
JHENR-97-0015, for integrated administrative and litigation support 
services, on an unrestricted basis.  RAI contends that the RFP should 
be set aside for small businesses.

We deny the protest.

The services are to be provided to the Environmental and Natural 
Resources Division (ENRD), a DOJ litigating division practicing civil 
and criminal law nationwide and employing approximately 708 attorneys 
and legal support professionals, most of whom are stationed in one of 
four (soon to be five) locations in the Washington, D.C. metropolitan 
area.  This procurement implements the agency's plan to develop 
contractor-operated integrated services centers in three ENRD 
locations to perform all mail/messenger/delivery, reproduction, office 
supply, and records management tasks.  ENRD has never before 
contracted out the full range of services contemplated here; there 
thus is no incumbent contractor or prior procurement history.

Acquisitions expected to exceed $100,000 must be set aside for 
exclusive small business participation where there is a reasonable 
expectation that offers will be obtained from at least two responsible 
small business concerns and that award will be made at fair market 
prices.  Federal Acquisition Regulation (FAR)  sec.  19.502-2(b); American 
Overseas Book Co., Inc., B-257989, Dec. 1, 1994, 94-2 CPD  para.  217 at 3.  
We will review an allegation that a procurement should be set aside to 
determine whether the agency undertook reasonable efforts to ascertain 
the likelihood of adequate small business competition and whether its 
determination is reasonable in light of the information obtained 
through those efforts.  Mortara Instrument Inc., B-272461,  Oct. 18, 
1996, 96-2 CPD  para.  212 at 3-4; State Management Servs., Inc., B-252312, 
June 21, 1993, 93-1 CPD  para.  474 at 2.

The agency proceeded reasonably here.  Its conclusion that a set-aside 
was not appropriate was based on its determination that no small 
business was likely to have the capability to perform the breadth, 
amount, and the integrated nature of the services required, the 
government estimate for which was $90,000,000 (for 1 base and 4 option 
years).  For example, DOJ focused on the fact that the contractor will 
be required to (1) provide and maintain a great number of copiers and 
telefacsimile machines of many different types and capabilities, with 
service to be provided within 30 minutes of a service call; (2) 
photocopy an estimated 450,000 copies of documents monthly; (3) 
receive, send, and keep a tracking system of all telefacsimile mail; 
(4) receive, sort, reroute, and deliver all ENRD mail to and from 15 
sites in the Washington, D.C. area; (5) prepare all outgoing mail, 
including overnight and other special delivery mail; (6) provide 
courier service, (including providing and maintaining a reliable fleet 
of vehicles); (7) operate multiple supply rooms in three different 
buildings (including stocking the supply rooms and delivering office 
supplies in very short time periods); (8) maintain ENRD's case files, 
and operate records management centers; (9) staff and maintain the 
service centers, including as many as six photocopying centers, during 
the 12-hour normal business day; and (10) maintain a reserve of 
sufficient personnel, who have received DOJ security clearances, to 
fill in for absent employees or to respond to a need for extra 
personnel.  The volume and scope of the services to be provided--and 
consideration of whether the required services are beyond the capacity 
of small businesses--are a proper focus for the set-aside 
determination.  See, e.g., Mortara Instrument, Inc., supra; 
CardioMetrix, B-260747, July 18, 1995, 95-2 CPD  para.  28 at 2-3.

The agency also researched and visited other large federal and private 
sector entities which utilize contractors to provide integrated 
administrative services, and learned that none was utilizing a small 
business contractor.  Finally, the agency consulted the DOJ Small and 
Disadvantaged Business Utilization Officer (SDBUO) on the matter.  
After reviewing the contract requirements and the research and 
analysis conducted by ENRD, he found the following factors most 
significant:  (1) the size and scope of the services required; (2) the 
integrated nature of the services required; (3) the inflexible 
deadlines imposed on the contractor; and (4) the requirements for 
photocopying and facsimile machines and a large number of active and 
reserve personnel.  He concluded it was very unlikely that two 
responsible small businesses would submit proposals at fair market 
prices because they would either lack the capital necessary to supply 
the required equipment and personnel or would have to acquire it for 
this contract, which, in turn, would make it impossible to offer a 
fair market price.  In reaching his conclusion, the SDBUO utilized the 
Small Business Administration Procurement Access Source System 
(SBAPASS), which contains descriptive information about individual 
small businesses that have requested to be included in the database 
under specific standard industrial classification (SIC) codes.  The 
SDBUO's search of SBAPASS yielded the names of several small business 
concerns for the applicable SIC code.  However, based on the 
information for each concerning capitalization, expertise and the 
services they provide, he concluded that none of the businesses 
identified would be a responsible small business likely to submit a 
proposal for the comprehensive services required here at a fair market 
price. 

We think the agency's efforts to determine the likelihood of receiving 
small business offers clearly were adequate and that the information 
considered provided a reasonable basis for its decision to issue an 
unrestricted RFP.  In this regard, the facts that the requirement was 
a new one, that the government estimate was $90 million, and that the 
required tasks clearly were extensive and would be expected to require 
substantial capital to perform, all support the agency's 
determination.  The SDBUO's concurrence further supports the 
reasonableness of the determination.  See Talon Mfg. Co., Inc., 
B-257536, Oct. 14, 1994, 94-2 CPD  para.  140 at 10.  At the same time, 
there is no evidence bringing into question the agency's finding that 
no small business was in a position to perform at a fair market 
price.[1]  In its comments on the agency report, RAI failed to rebut 
any aspect of the rationale underlying the agency's determination that 
a set-aside is not appropriate; notably, RAI does not assert that it 
or any other particular small business has the capability to perform 
the contract at a fair market price.  Under these circumstances, the 
agency properly issued the RFP on an unrestricted basis.

The protest is denied.

Comptroller General
of the United States

1. The agency did receive several small business responses to the 
Commerce Business Daily notice for the requirement.  However, there is 
no evidence that any of these small businesses were interested in 
competing for the requirement.  In this regard, such expressions of 
interest by themselves are not sufficient to establish the likelihood 
of small business competition at fair market prices, since small 
businesses commonly respond to advertisements for government 
procurements solely to remain apprised of potential subcontracting 
opportunities.  Premiere Vending, 73 Comp. Gen. 201, 208-209 (1994), 
94-1 CPD  para.  380 at 10.  The protester does not assert otherwise.