TITLE:  Tiger Enterprises, Inc., B-294973, January 4, 2005
BNUMBER:  B-294973
DATE:  January 4, 2005

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   Decision

   Matter of:   Tiger Enterprises, Inc.

   File:            B-294973

   Date: January 4, 2005

   Lillian K. Mauldin for the protester.

   J.R. Cohn, Esq., and Julius Rothlein, Esq., U.S. Marine Corps, and Kenneth
Dodds, Esq., and John W. Klein, Esq., Small Business Administration, for
the agencies.

   John L. Formica, Esq., and Guy R. Pietrovito, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that Small Business Administration (SBA) improperly accepted a
U.S. Marine Corps requirement for the lease of washers/dryers into the
section 8(a) program is denied where the record supports the SBA's
determination that the requirement is "new," and as such an adverse impact
determination was not required.

   DECISION

   Tiger Enterprises, Inc. protests the decision of the U.S. Marine Corps and
Small Business Administration (SBA) to contract with Class Act under the
section 8(a) set-aside program for the lease and maintenance of washers
and dryers for certain barracks at Camp Lejeune, North Carolina.

   We deny the protest.

   Camp Lejeune is a Marine Corps training base where marines living in
barracks do not have access to commercial laundry facilities.  The Marine
Corps thus leases washers and dryers for use by marines.  The agency
explains that "[a] substantial program of construction and renovation of
barracks is ongoing at Camp Lejeune," and that "Marines must have washers
and dryers available in their new quarters."  Agency Report (AR) at 1-2.

   Over the past 10 years, the agency has competitively awarded successive
contracts to two small businesses for the lease of washers/dryers at Camp
Lejeune.  AR, Tab 2, Chronology, at 1.  A third contract for the
washers/dryers was solicited as a small business set-aside; this contract,
which was first awarded by the agency in August 2003, has been the subject
of a number of protests, and has since been canceled.[2]

   The record reflects that in May and June 2004 four new/renovated barracks
at Camp Lejeune became available for use, and the agency offered this
requirement to the SBA for performance by a section 8(a) contractor.  The
Marine Corps explained to the SBA that the requirement was "new" because
"no small-business set-aside vendor was working the four barracks," and
that the requirement had not been part of the other solicitations or
contracts for the lease and maintenance of washers/dryers at Camp
Lejeune.  AR, Tab11, Contracting Officer's Memorandum (July 28, 2004);
TabA 12, Letter from Contracting Officer to SBA (July 28, 2004).  The SBA
subsequently accepted the requirement into the section 8(a) program, and
awarded a contract for the lease of washer/dryers for the four
new/renovated barracks through the section 8(a) program to Class Act.  AR,
Tab 8, Class Act Contract; Tab 13, Letter from Contracting Officer to SBA
(July 29, 2004).

   Tiger protests that the Marine Corps and SBA violated the regulations
governing placement of work under SBA's section 8(a) program, arguing that
contrary to the position of the Marine Corps and SBA, the requirement has
effectively been included in the contracts previously awarded to small
businesses for the lease and maintenance of washers/dryers at Camp
Lejuene.  In this regard, Tiger contends that although the four barracks
at issue here are new or renovated, the previous contracts and
solicitation included a clause providing for the relocation or removal of
washers/dryers, and that requirements for washers/dryers at new or
renovated barracks could be met through the use of this relocation or
removal clause.

   The Small Business Act affords SBA and contracting agencies broad
discretion in selecting procurements for inclusion in the section 8(a)
program; we will not consider a protest challenging a decision to procure
under the section 8(a) program unless the protester alleges possible fraud
or bad faith on the part of government officials, or that specific laws or
regulations have been violated.  4 C.F.R. S 21.5(c)(2) (2004); C. Martin
Co., Inc., B-292662, Nov. 6, 2003, 2003 CPD P 207 at 3.

   Under the Act's implementing regulations, SBA will not accept a
procurement for award as a section 8(a) contract if doing so would have an
adverse impact on an individual small business, a group of small
businesses in a specific geographic location, or other small business
programs.  13 C.F.R. S 124.504(c) (2004).  The purpose of the "adverse
impact" concept is to protect other small businesses performing contracts
outside the 8(a) program.  Id.; Grace Indus., Inc., B-274378, Nov. 8,
1996, 96-2 CPD P 178 at 2 n.2.  The "adverse impact" concept, however,
does not apply to "new" requirements that have not been previously
purchased by the procuring agency.  See 13 C.F.R. S 124.504(c)(1)(ii)(A),
which explains that:

   [w]here a requirement is new, no small business could have previously
performed the requirement and, thus, SBA's acceptance of the requirement
for the 8(a) [business development] program will not adversely impact any
small business.

   The SBA states that, because the four barracks at issue here were not
among the buildings listed in the previous contracts or solicitations that
had been set aside for small businesses, the SBA considered the
requirement to be "new" and suitable for inclusion in the section 8(a)
program.  The SBA explains that the purpose of the adverse impact concept
"is to prevent an agency from snatching a procurement opportunity away
from small business concerns when such concerns may have already expended
time and resources in the pursuit of that opportunity."  SBA Report at 4. 
The SBA adds that, in its view, the relocation/removal clause pointed to
by the protester "which would purportedly give the [Marine Corps] the
ability to add or relocate machines after award [is] not specific enough
to trigger the [regulatory] provisions" requiring a determination of
adverse impact, and that, in its view, the "adverse impact" concept and
relocation/removal provisions of the previous solicitations or contracts
"should not be interpreted to bar the [Marine Corps] from ever awarding a
section 8(a) contract for washers and dryers at Camp Lejeune."  Id. at 3,
4.

   Tiger has not shown that the SBA's interpretation of its regulations is
unreasonable.  As the agency responsible for promulgating the adverse
impact regulation, the SBA's interpretation deserves great weight, and we
give deference to an agency's reasonable interpretation of its
regulations.  See The Urban Group, Inc.; McSwain and Assocs., Inc.,
B-281352, B-281353, Jan. 28, 1999, 99-1 CPD P 25 at 25.  Here, as stated
by the SBA, the four barracks listed in Class Act's contract are not among
the buildings listed in the previous contracts, or among the 183 buildings
listed in the most recent solicitation issued as a small business set-side
by the Marine Corps for the lease of washers/dryers at Camp Lejeune. 
Given this, and our view that the SBA is correct that the
relocation/removal clause cannot reasonably be read as applying to each
needed washer/dryer at Camp Lejeune regardless of whether the building
where the washer/dryer is needed has been previously set aside for
performance by small business concerns, we have no basis upon which to
object to the placement and acceptance of the requirement in the section
8(a) program by the Marine Corps and SBA.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Section 8(a) of the Small Business Act, 15 U.S.C. S 637(a) (2000),
authorizes SBA to contract with government agencies and arrange for the
performance of those contracts by awarding subcontracts to socially and
economically disadvantaged small businesses.

   [2] In 2003, Tiger protested to our Office that the Marine Corps had
improperly failed to terminate a small business set-aside contract for the
lease of washers/dryers at Camp Lejeune after the firm awarded the
contract was found by the SBA to be other than a small business in
response to a timely size protest.  We sustained Tiger's protest in Tiger
Enters., Inc., B-292815.3, B-293439, Jan. 20, 2004, 2004 CPD PA 19.  The
agency resolicited the requirement under a different solicitation, and
Tiger protested to our Office that the agency's source selection under
that solicitation was not reasonably based.  We sustained that protest in
Tiger Enters., Inc., B-293951, JulyA 26, 2004, 2004 CPD P 141.  In
response to that decision, the agency amended the solicitation, and sought
revised proposals.  Tiger filed a protest with our Office, challenging the
terms of the solicitation as amended, and the agency subsequently canceled
the solicitation, rendering Tiger's protest academic.  Tiger Enters.,
Inc., B-293951.2, August 31, 2004.
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