BNUMBER:  B-278621 
DATE:  February 19, 1998
TITLE: Air Transport Association, B-278621, February 19, 1998
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Matter of:Air Transport Association

File:     B-278621

Date:February 19, 1998

Warren L. Dean, Jr., Esq., Patricia N. Snyder, Esq., Wayne A. Keup, 
Esq., and Heather Miller, Esq., Dyer, Ellis & Joseph, for the 
protester.
Jonathan S. Baker, Esq., Environmental Protection Agency, for the 
agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

A procurement for support services for the evaluation of jet aviation 
emissions was properly set aside exclusively for small business 
participation where the contracting officer reasonably determined that 
submission of offers reasonably could be expected from at least two 
responsible small business concerns at a fair market price.

DECISION

Air Transport Association protests request for proposals (RFP) No. 
XX7001, issued by the Environmental Protection Agency (EPA) as a small 
business set-aside for support services for the evaluation of jet 
aviation emissions.  Air Transport protests the small business set 
aside and other terms of the RFP.

We deny the protest in part and dismiss it in part.

The RFP, issued on October 27, 1997, by publication in the Commerce 
Business Daily, contemplated the award of a firm, fixed-price contract 
for two tasks.  Task 1 was for the review of information and the 
preparation of a working paper report concerning fuel use and nitrogen 
oxides trade-off issues based on engine designs.  Task 2 was for the 
research of information on high speed civil transportation and the 
preparation of a memo discussing likely scenarios of environmental 
impacts relating to engine design.  The RFP stated that delivery of a 
draft working paper for Task 1 would be required within 4 weeks of 
award, and delivery of the final working paper would be required 
within 2 weeks of the contractor receiving EPA's written comments on 
the draft.  The delivery date for a draft memo for Task 2 was January 
30, 1998, and delivery of a final memo was required within 1 month of 
the contractor receiving EPA's written comments.  The government 
estimate for the procurement was $40,000.  

The RFP stated that the award would be made using simplified 
acquisition procedures under Federal Acquisition Regulation (FAR) 
Subpart 13, and that the procurement was set aside exclusively for 
small business participation.  Proposals were due and submitted on 
November 13.  Air Transport did not submit a proposal.

Immediately prior to the time set for submission of proposals, Air 
Transport, which is not a small business concern, protested the 
delivery terms for Task 1 and the small business set-aside, alleging 
that the requirements for the draft working paper cannot be performed 
within 4 weeks, particularly by a small business concern.  Air 
Transport also alleges that the Task 1 requirements cannot be 
performed for less than $100,000 and, to the extent the agency 
contends that its actual minimum needs can be performed for less than 
that amount, the agency has relaxed the RFP requirements without 
amending the RFP.  Air Transport also protested the terms of the 
conflict of interest provision in the RFP.

Under FAR  sec.  13.105(a), an acquisition with an estimated value 
exceeding $2,500 and not exceeding $100,000 is reserved exclusively 
for small business concerns and shall be set aside in accordance with 
Subpart 19.5.  FAR  sec.  19.502-2(a) states, in relevant part, that a set 
aside of such acquisition is automatic unless:

     the contracting officer determines there is not a reasonable 
     expectation of obtaining offers from two or more responsible 
     small business concerns that are competitive in terms of market 
     prices, quality, and delivery.

As a general rule, the decision as to whether to set aside a 
particular procurement is within the discretion of the contracting 
agency.  Aspen Sys. Corp., B-272213.2, Oct. 22, 1996, 96-2 CPD  para.  153 
at 3.  We will not question a set-aside decision unless an abuse of 
discretion is clearly shown.  ARO Corp., B-231438, July 22, 1988, 88-2 
CPD  para.  74 at 2.  

Here, the government estimate was well within the $2,500 to $100,000 
range.  This estimate was based on EPA's past experience acquiring 
similar services.  Although Air Transport generally disagrees that the 
RFP requirements could be performed for less than $100,000, it has not 
provided any evidence to support this general allegation.  Even 
assuming, as the protester alleges, that more services were required 
by the terms of the RFP than were reflected in the agency's estimate, 
Air Transport has not provided any evidence to show that such 
additional services reasonably could be expected to increase the 
estimated value of this procurement to exceed $100,000.[1]  Moreover, 
even assuming the RFP requirements have been relaxed after submission 
of proposals, which the record does not confirm, this would tend to 
show that the services can be obtained for less than the amount which 
Air Transport initially believed they would cost and, apparently, for 
less than $100,000.  Thus, Air Transport has not shown that FAR  sec.  
13.105(a) and 19.502-2(a) are not applicable to this RFP.

Nor did the agency abuse its discretion in determining that a 
reasonable basis existed to expect offers from at least two capable 
small business concerns.  The contracting officer determined, based on 
information provided by the project manager, that there was a 
reasonable expectation of receiving offers from two small business 
concerns.  The project manager had discussions with technical 
personnel experienced with jet fuel emissions from the Federal 
Aviation Administration, the National Aeronautic and Space 
Administration, and EPA's Office of Mobile Sources concerning the 
existence of small business concerns capable of performing the work at 
a fair market price; two small business concerns were identified.  

The protester has not suggested that either of the two concerns 
identified was not a small business, or did not have the experience, 
expertise or other capabilities necessary to perform the stated 
requirements in the required time period.  In fact, the protester 
provided no evidence to support even its general allegation that no 
small business concern can perform the protested requirements in the 
4-week period required for delivery of the draft working paper.  

Based on the record before us, EPA's decision to set aside the RFP for 
exclusive participation by small business concerns was reasonable and 
not an abuse of its discretion.

Since Air Transport is not a small business concern and because this 
RFP was properly set aside for small business, Air Transport is not an 
interested party eligible to protest the other terms in the RFP.  
Under the bid protest provision of the Competition in Contracting Act 
of 1984, 31 U.S.C.A.  sec.  3551-3556 (West Supp. 1997), only an 
interested party may protest a federal procurement.  That is, a 
protester must be an actual or prospective bidder or offeror whose 
direct economic interest would be affected by the award of a contract 
or the failure to award a contract.  4 C.F.R.  sec.  21.0(a) (1997).  A 
protester is not an interested party where it would not be eligible 
for contract award were its protest to be sustained.  ECS Composites, 
Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD  para.  7.  Since Air Transport is 
not a small business concern, it is ineligible for award under this 
solicitation and is thus not an interested party for the purpose of 
challenging the remaining terms of the RFP.  ARO Corp., supra, at 2.

The protest is denied and, in part, dismissed.

Comptroller General
of the United States    

1. For example, the protester alleges that the RFP's detailed 
description of the content of the working paper implies that the 
contractor must develop and apply complex modeling techniques.  
Although the RFP does not state that any modeling techniques must be 
used, and the agency states that none are required, even if we assume 
for the sake of argument that they are required, the protester has not 
provided any evidence to show the estimated cost of, or time required 
for, using such models.