BNUMBER:  B-279216 
DATE:  April 23, 1998
TITLE: PR Newswire, B-279216, April 23, 1998
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Matter of:PR Newswire

File:     B-279216

Date:April 23, 1998

Daniel Selnick for the protester.
Catherine S. Anderson, Esq., Executive Office of the President; David 
R. Kohler, Esq., and Audrey H. Liebross, Esq., Small Business 
Administration, for the agencies.
Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procurement for news distribution services was properly set aside for 
exclusive small business participation where the contracting officer 
reasonably determined that the agency could expect offers from at 
least two responsible small business concerns and that award would be 
made at a fair market price.

DECISION

PR Newswire protests the Executive Office of the President's (EOP) 
issuance as a total small business set-aside of solicitation No. 
EOPOA-97-07, for electronic news distribution services.  PR Newswire 
contends that the set-aside is improper and tantamount to a sole 
source award because there is only one small business capable of 
performing those services.

We deny the protest. 

The successful contractor is to distribute the full text of White 
House documents including, but not limited to, press releases, press 
advisories, schedules, speech texts, presidential proclamations, 
backgrounds, and transcripts of media briefings and other news events.  
All documents must be distributed within 1 hour of receipt by the 
contractor.  The contractor will accept data from the White House via 
Internet, e-mail, fax transmission, and computer disk.  Services must 
be available 24 hours per day, 7 days per week. 

PR Newswire contends that the only entities technically capable of 
performing this contract are PR Newswire (which is not a qualifying 
small business), and one small business, U.S. Newswire (the 
incumbent).  PR Newswire asserts that these two offerors were the only 
two "truly" competent offerors in a "past similar procurement."  All 
other submissions were allegedly withdrawn by the offerors or 
eliminated from the competition for "limitations in competency."
Under Federal Acquisition Regulation (FAR)  sec.  19.502-2(b), a 
procurement with an anticipated dollar value of more than $100,000 
must be set aside for exclusive small business participation when 
there is a reasonable expectation of receiving offers from at least 
two responsible small business concerns and that award will be made at 
a fair market price.  American Med. Response of Conn., Inc., B-278457, 
Jan. 30, 1998, 98-1 CPD  para.  44 at 2.  Unless such a reasonable 
expectation exists, a total small business set-aside cannot be issued.  
FAR  sec.  19.502-2(b); see FKW Inc., B-249189, Oct. 22, 1992, 92-2 CPD  para.  
270 at 2.  The use of any particular method of assessing the 
availability of small businesses is not required so long as the agency 
undertakes reasonable efforts to locate responsible small business 
competitors; in this regard, the decision whether to set aside a 
procurement may be based on an analysis of factors such as the prior 
procurement history, the recommendations of appropriate small business 
specialists, and market surveys which include responses to Commerce 
Business Daily (CBD) announcements.   Litton Electron Devices, 66 
Comp. Gen. 257, 259 (1987), 87-1 CPD  para.  164 at 3.  Because a decision 
whether to set aside a procurement is a matter of business judgment 
within the contracting officer's discretion, our review generally is 
limited to ascertaining whether that official abused his or her 
discretion.  CardioMetrix, B-271012, May 15, 1996, 96-1 CPD  para.  227 at 
2.

In this case, prior to issuing the solicitation, EOP took into 
consideration the fact that technological advances had been made in 
the data distribution industry in the 3 years since the last time the 
effort was competed.  The contracting officer observed that the market 
was "expanding daily with more high tech capabilities being offered by 
more small businesses."  Based on these technological advances and 
EOP's policy to provide maximum opportunities to small businesses, EOP 
conducted an informal market survey to determine if the procurement 
was appropriate for set-aside.  The survey included a review of the 
EOP small business specialist's file of standard forms 129 for 
Standard Industrial Classification (SIC) Code 7375, "Information 
Retrieval Services."  This review identified more than 30 interested 
small business concerns in this SIC Code with the potential capability 
to perform the required services.  Since prior experience was not a 
prerequisite for this acquisition, the contracting officer determined 
to issue the solicitation as a total small business set-aside.  To 
this end, EOP synopsized the solicitation in the CBD on July 15, 1997.  
Twenty-nine businesses, including at least seven small businesses, 
requested copies of the solicitation.  

Here, the protester concedes that there is at least one small business 
capable of performing the contract, U.S. Newswire.  In addition to the 
existence of this small business, EOP's internal market survey and the 
responses to the CBD notice indicated that there were significantly 
more than two more small businesses interested in competing under this 
acquisition.  Further, in our view, the contracting officer acted 
reasonably in finding that the development of technological advances 
in this service industry strongly suggests that these small businesses 
may now have the capability to perform the contract.[1]  Under these 
circumstances, the contracting officer reasonably concluded that there 
were at least two capable small businesses who would submit reasonably 
priced offers in response to the solicitation.   Accordingly, we have 
no basis to conclude that the contracting officer abused his 
discretion in deciding to set aside this procurement.  

Our conclusion is not changed by PR Newswire's assertion that even if 
these small businesses compete, they will not be able to meet the 
agency's needs.  In this regard, while the standards of responsibility 
enunciated in the regulations may be relevant in making a set-aside 
determination, the contracting officer need not make determinations 
tantamount to affirmative determinations of responsibility as part of 
this process; the agency is only obligated to make an informed 
business judgment that there is a reasonable expectation of receiving 
reasonably priced offers from a sufficient number of responsible small 
businesses.  American Med. Response of Conn., Inc., supra, at 2-3.  
Moreover, while the protester's argument is premised on its position 
that the potential small business offerors lack relevant experience, 
the solicitation did not contain a requirement that offerors have any 
particular prior experience in disseminating news releases.[2]  

The protest is denied.

Comptroller General
of the United States

1. In this regard, U.S. Newswire has submitted a list of 19 
businesses, identified as small, in the field of news release 
distribution, whose advertisements appeared "in a recent trade 
magazine."  We have reviewed advertisements from two of these small 
business concerns (Daybook News and Capitol Newswire) and note that 
both of them compare their services with PR Newswire's capabilities.   

2. PR Newswire suggests that a requirement for prior experience is 
evidenced by the solicitation provision that offerors provide 
descriptions of "similar contracts performed within the past 3 years."  
While the agency required submission of and intends to evaluate past 
performance information, such an evaluation criterion does not mean 
that an offeror is required to possess prior experience in particular 
contract performance areas in order to be eligible for contract award.