BNUMBER:  B-276405; B-276405.2 
DATE:  June 9, 1997
TITLE: Security Consultants Group, Inc., B-276405; B-276405.2, June
9, 1997
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Matter of:Security Consultants Group, Inc.

File:     B-276405; B-276405.2

Date:June 9, 1997

James H. Roberts III, Esq., Manatt, Phelps & Phillips, LLP, for the 
protester.
Hector Gonzalez Sanchez, for H.G. Security System, Inc., an 
intervenor.
Scarlett D. Grose, Esq., General Services Administration, and David R. 
Kohler, Esq., and Timothy C. Treanor, Esq., Small Business 
Administration, 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

In offering a requirement to the Small Business Administration (SBA) 
for acceptance into its 8(a) program, the contracting agency 
prejudicially failed to comply with the regulatory requirement to 
provide SBA with complete and accurate information regarding the 
proposed offering by not identifying the protester as an 8(a) concern 
which had expressed an interest in being considered for the 
acquisition.

DECISION

Security Consultants Group, Inc. (SCG) protests the failure of the 
General Services Administration (GSA) to advise the Small Business 
Administration (SBA) of its interest in being considered for the award 
of a subcontract by SBA under its 8(a) program for the performance of 
site assessments and the installation of security systems for various 
GSA controlled buildings and/or facilities within Metropolitan New 
York City and the states of New Jersey and New York.  SCG argues that 
it was prejudiced by GSA's failure to comply with the applicable 
regulation governing the offering of the requirement to SBA.

We sustain the protests.

GSA's requirement was for an indefinite quantity contract with a 
minimum ordering limitation of $300,000 and a maximum ordering 
limitation of $3,000,000.  GSA's contracting officer's offering letter 
to SBA stated the following:

     "To confirm our previous conversations, the above requirement has 
     been identified by our agency as suitable for procurement under 
     Section 8(a) of the Small Business Act.  This is an indefinite 
     quantity contract with an estimated minimum of $300,000 and an 
     estimated maximum of $3,000,000.  The contract performance will 
     begin March 1, 1997 and end December 31, 1997.  When you [SBA] 
     identify a suitable 8(a) subcontractor, please have them contact 
     me to begin negotiations."[1]

SBA subsequently notified GSA that it accepted GSA's offering on 
behalf of H.G. Security System, Inc. (HGSS), an 8(a) concern located 
in Brooklyn, New York.

SCG, an 8(a) concern located in Oak Ridge, Tennessee, protests the 
failure of GSA to advise SBA of the firm's interest in being 
considered for the award of a subcontract under SBA's 8(a) program to 
perform GSA's requirement.  The record shows that before GSA even 
offered the requirement to SBA, SCG met with GSA contracting personnel 
and expressed its interest in performing GSA's requirement.  GSA 
concedes that it was aware, prior to sending its offering letter to 
SBA, of SCG's interest.  GSA's offering letter, however, contained no 
reference to SCG.

Section 8(a) of the Small Business Act authorizes SBA to contract with 
government agencies and to arrange for performance of such contracts 
by awarding subcontracts to socially and economically disadvantaged 
small businesses.  15 U.S.C.  sec.  637(a) (1994).  The Act affords SBA and 
contracting agencies broad discretion in selecting procurements for 
the 8(a) program.  We will not consider a protest challenging a 
decision to procure under the 8(a) program absent a showing of 
possible bad faith on the part of government officials or that 
regulations may have been violated.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.5(b)(3) (1997); Grace Indus., Inc., B-274378, Nov. 8, 1996, 96-2 
CPD  para.  178 at 2.  Here, SCG argues that GSA prejudicially failed to 
comply with the requirement at 13 C.F.R.  sec.  124.308(c) to furnish SBA 
with complete and accurate information regarding the proposed offering 
which directly impacted SBA's selection of an 8(a) concern to perform 
GSA's requirement.

In making decisions regarding 8(a) acquisitions, SBA is entitled to 
rely on the contracting officer's representations regarding the 
offered requirement.  In this regard, SBA's regulations place the 
primary responsibility on the procuring agency to submit all relevant 
information necessary to SBA's decision-making process.  13 C.F.R.  sec.  
124.308; Comint Sys. Corp., B-274853; B-274853.2, Jan. 8, 1997, 97-1 
CPD  para.  14 at 3.  In this case, the SBA states, and we agree, that GSA's 
offering letter did not provide complete and accurate information as 
required under 13 C.F.R.  sec.  124.308(c).

Specifically, under 13 C.F.R.  sec.  124.308(c)(14), the procuring activity 
is unambiguously required to include in its offering letter to SBA, 
among other things, the "[i]dentification of all 8(a) concerns which 
have expressed an interest in being considered for the acquisition."  
In its offering letter, GSA did not identify SCG to SBA as an 8(a) 
concern which had expressed an interest in being considered for the 
performance of GSA's requirement.  Under these circumstances, we 
conclude that GSA's offering letter failed to comply with the 
requirement at 13 C.F.R.  sec.  124.308(c)(14) and that as a result, GSA 
effectively deprived SBA of the opportunity to make a fully informed 
decision with respect to this 8(a) acquisition.[2]  Comint Sys. Corp., 
supra at 4-5.

We further conclude that GSA's failure in this regard prejudiced SCG.  
Our Office will not sustain a protest unless the protester 
demonstrates a reasonable possibility that it was prejudiced by the 
agency's actions, that is, unless the protester demonstrates that, but 
for the agency's actions, it would have had a substantial chance of 
receiving the award.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 
CPD  para.  54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 
1581 (Fed. Cir. 1996).  Here, if GSA had properly notified SBA of 
SCG's interest, SCG could have been awarded the contract.  Thus, SCG 
obviously was prejudiced by what occurred here.  Accordingly, we 
sustain its protests.  Comint Sys. Corp., supra at 7.

In light of GSA's prejudicial failure to comply with the regulatory 
requirement to provide SBA with complete and accurate information 
regarding the proposed offering and in light of SBA's becoming aware 
of SCG's interest through the protest process, we recommend that SBA 
reopen the process of accepting GSA's requirement on behalf of an 8(a) 
concern.  In this regard, SBA should consider the qualifications of 
both SCG and HGSS.  Depending on the results of SBA's reopened 
process, the contract with HGSS should be continued or terminated with 
award made to SCG, as appropriate.  We also recommend that SCG be 
reimbursed its costs of filing and pursuing its protests, including 
reasonable attorneys' fees, by GSA.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.8(d)(1) (1997).  SCG should submit its certified claim for costs to 
GSA within 60 days of receiving this decision.  4 C.F.R.  sec.  21.8(f)(1).

The protests are sustained.

Comptroller General
of the United States

1. SBA characterizes this acquisition as an "open requirement," that 
is, SBA, as opposed to the contracting agency, chooses a qualified 
8(a) concern to perform the requirement.  13 C.F.R.  sec.  124.308(f) 
(1997).  Since this procurement was for a non-construction 
requirement, SBA may select any eligible, responsible 8(a) concern 
nationally to perform the requirement.  13 C.F.R.  sec.  124.308(f)(2).

2. GSA reports that it telephonically notified SBA of SCG's interest 
prior to sending the offering letter to SBA.  SBA's regulation 
provides for use of the written offering letter, not telephonic 
identification of interested 8(a) concerns, 13 C.F.R.  sec.  124.308(c), 
(d), and SBA's contract negotiator denies being telephonically 
notified by GSA of SCG's specific existence and interest.  Under these 
circumstances, where SBA denies being orally advised by GSA of what 
was required by regulation to be in writing, we cannot conclude that 
SBA was aware of SCG's interest.  See I.E. Levick and Assocs., 
B-214648, Dec. 26, 1984, 84-2 CPD  para.  695 at 3.  (GSA also reports that 
on two occasions it forwarded to SBA correspondence from SCG in which 
the firm, among other things, expressed its interest in performing 
GSA's requirement.  The record shows, however, that both of these 
occasions were weeks after SBA accepted the requirement on behalf of 
HGSS.)