TITLE: B-299545, Basic Concepts, Inc., May 31, 2007
BNUMBER: B-299545
DATE: May 31, 2007
********************************************
B-299545, Basic Concepts, Inc., May 31, 2007

   Decision

   Matter of: Basic Concepts, Inc.

   File: B-299545

   Date: May 31, 2007

   Russell Guffee, Basic Concepts, Inc., for the protester.

   Edward R. Murray, Esq., Defense Logistics Agency, for the agency.

   Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Contracting agency's decision to satisfy its immediate requirements for
   hazardous spill containment units using a contract awarded under the Small
   Business Administration's section 8(a) business development program, while
   completing an ongoing competition reserved for small businesses, is
   unobjectionable where acquiring the items using the 8(a) program does not
   violate any statute or regulation.

   DECISION

   Basic Concepts, Inc., a small business concern, protests the award of a
   contract for hazardous material spill containment units (or berms)[1],
   National Stock Number (NSN) 4235-01-419-4798, by the Defense Logistics
   Agency (DLA) under the Small Business Administration's (SBA) section 8(a)
   business development program. The contract was awarded on a noncompetitive
   basis to Bowhead Manufacturing Company, following a decision by DLA to
   terminate an earlier award to Bowhead because of errors pointed out by the
   protester in an agency-level protest.[2] Basic argues that the agency
   acted improperly in not holding a new competition for these units.

   We deny the protest.

   BACKGROUND

   On October 25, 2005, the agency issued, as a small business set-aside, a
   solicitation seeking a long-term supplier for these berms. That
   solicitation is ongoing and both Basic and Bowhead are eligible to
   compete.

   As the more significant procurement continues, DLA reports that it has
   backorders for these units that cannot await completion of the ongoing
   competition. As a result, the agency issued, on October 17, 2006, an
   unrestricted solicitation for 177 small hazardous spill containment berms,
   identified as NSN 4235-01-419-4798. Agency Report (AR), Tab B-3. In
   addition to listing the NSN, the solicitation set forth the salient
   characteristics of the item, and identified--by manufacturer's part
   number--four approved products, including products manufactured by Basic
   and Bowhead. [3] Although it was not noticed until later, the
   manufacturer's part number listed in the solicitation for Bowhead's
   approved product was incorrect. Specifically, the solicitation listed
   Bowhead's "Snap-up" berm (Part No. B-040408-SU), rather than its "Throw N
   Go" berm (Part No. 4235014194798, which is the same number as the NSN). AR
   at 2.

   On November 1, Bowhead was awarded the contract based on its lowest price.
   As the solicitation requested, Bowhead offered to provide its "Snap-up"
   berm, rather than its "Throw N Go" berm. Basic filed an agency-level
   protest objecting to the award, arguing that Basic had a patent that
   prevented Bowhead from supplying the "Snap-up" berm. Although Bowhead
   conceded that it could not provide the "Snap-up" berm, it explained that
   it recognized the mistake in the solicitation, and in fact, planned to
   supply its "Throw N Go" berm instead. As a result, the agency decided to
   terminate Bowhead's award, as well as two other contracts for larger berms
   awarded to Bowhead on December 15 and 18.[4]

   By letter dated January 4, 2007, the agency advised both Basic and Bowhead
   that it was canceling the three awards, and that the agency would correct
   the item description to identify the Bowhead "Throw N Go" berm as an
   acceptable item and resolicit the requirement. AR, Tab 4, Letter from
   Agency to Basic and Bowhead dated Jan. 4, 2007. This letter also advised
   that the needed items were in short supply and that the agency would
   "likely again utilize urgent and compelling procedures" to fulfill its
   immediate requirements. Id.

   DLA explains that immediately after deciding to cancel the award, on
   January 9, 2007, Bowhead contacted the agency's Small Business Office to
   advise that it qualifies as an 8(a) firm, and that it was approved to
   supply both the small and large sizes of berms. AR, Tab G, Declaration of
   Procurement Analyst. After verifying Bowhead's status as an 8(a) business,
   and confirming that the item description had been updated, the Small
   Business Office decided to add the item to its 8(a) database. Id. After
   receipt of a purchase request for 250 berms, the Small Business Office
   notified the agency that the berms should be reserved for a direct award
   to Bowhead under the SBA's 8(a) business development program. AR, Tab H,
   Small Business Coordination Record.

   On January 24, the agency solicited Bowhead directly using an 8(a)
   set-aside, and simplified acquisition procedures. Bowhead responded on
   January 29, and after its offer was evaluated, Bowhead received an award
   for 250 berms on February 8. Basic again filed an agency-level protest on
   February 15, which was denied on March 3. This protest to our Office
   followed on March 12.

   DISCUSSION

   Basic argues that it was not appropriate for the agency to procure these
   interim quantities of berms under the SBA's 8(a) program after the January
   4 DLA corrective action letter advised that the agency would "resolicit"
   the item in response to Basic's original agency-level protest. In Basic's
   view it has been unfairly excluded from this procurement.

   In reviewing Basic's complaint that it has been treated unfairly here, we
   have looked at the January 4 letter advising Basic that the earlier award
   would be canceled and resolicited. As an initial matter, there was no
   representation in the January 4 letter that there would be a new
   competition for this item. In fact, the letter advised that the agency
   would likely take steps to expedite its reprocurement. See AR, Tab 4,
   Letter from Agency to Basic and Bowhead dated Jan. 4, 2007. While Basic
   clearly feels misled by the events here, upon review--and looking at this
   situation as a whole--we see nothing improper or unreasonable about the
   agency's actions.

   Moreover, the protester's contention that the agency's use of the 8(a)
   program was merely an attempt to exclude Basic from competing is not
   supported by the record here. Government officials are presumed to act in
   good faith, and a protester's claim that contracting officials were
   motivated by bias or bad faith must be supported by convincing proof; our
   Office will not attribute unfair or prejudicial motives to procurement
   officials on the basis of inference or supposition. Shinwa Elecs.,
   B-290603 et al., Sept. 3, 2002, 2002 CPD para. 154 at 5 n.6. Here, the
   protester has provided no evidence of bad faith; rather, it draws an
   inference from a series of facts to support its belief that someone in the
   Small Business Office has "targeted Bowhead as a favorite vendor." Protest
   at 3. The protester's conclusion is based on speculation, and is
   insufficient to support a finding of bad faith.[5]

   A second theme in Basic's protest, though not argued with specificity, is
   that it was somehow improper to award this requirement under the SBA's
   8(a) program. In this regard, we note that the earlier award to Bowhead,
   which was cancelled, was conducted on an unrestricted basis; the ongoing
   competition to select a long-term supplier for these products is being
   conducted as a small business set-aside.

   Section 8(a) of the Small Business Act, 15 U.S.C. sect. 637(a) (2000),
   authorizes the SBA to enter into contracts with government agencies and to
   arrange for performance through subcontracts with socially and
   economically disadvantaged small business concerns. Federal Acquisition
   Regulation (FAR) sect. 19.800(a). 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 unless, as here, the protester alleges possible fraud or bad
   faith on the part of government officials, or that specific laws or
   regulations have been violated. Bid Protest Regulations, 4 C.F.R.
   sect.21.5(c)(2); Korean Maintenance Co., B-243957, Sept. 16, 1991, 91-2
   CPD para. 246 at 5.

   Under the Act's implementing regulations, SBA may not accept any
   procurement for award as an 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. sect. 124.504(c)(1)-(3) (2006). The purpose of the
   adverse impact concept is to protect incumbent small businesses who are
   currently performing an offered requirement outside the program. 13 C.F.R.
   sect. 124.504(c); Korean Maintenance Co., supra, at 2. In response to the
   protester's concerns about this procurement, our Office asked the SBA to
   review DLA's actions and provide its views about whether this procurement
   violated the above-described restrictions.

   By letter dated May 18, SBA stated that the agency here properly utilized
   its streamlined procedures for 8(a) awards for acquisitions valued at or
   below the simplified acquisition threshold. SBA Response to Protest, May
   18, 2007. The SBA states that where, as here, it has delegated its
   contract execution function to a procuring agency, offer and acceptance of
   acquisitions valued at or below the simplified acquisition threshold is
   not required. The SBA also explained that its regulations specifically
   provide that the adverse impact concept does not apply to any requirement
   offered to the 8(a) program under simplified acquisition procedures. 13
   C.F.R. sect. 124.504(c).[6]

   Given our review of the record associated with the earlier agency-level
   protest, and SBA's view that DLA's approach does not violate small
   business regulations, we have no basis to conclude that DLA acted
   improperly here.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] These units are placed under a vehicle to prevent and contain the
   release of potentially hazardous materials during repairs or maintenance.

   [2] Department of Defense (DOD) agencies have been delegated authority to
   enter into 8(a) contracts on behalf of the SBA. DOD Federal Acquisition
   Regulation Supplement sect. 219.80.

   [3] DLA explains that, originally, the only approved hazardous material
   spill containment units were manufactured by Basic, but in November 2005,
   Bowhead's "Throw N Go" berm was approved by the agency as an acceptable
   product. AR, Tab B, Agency Dismissal Request at 2.

   [4] Contracts SPM4A6-07-V-1048 and SPM4A6-07-V-0998 were awarded to
   Bowhead on December 18 and 15 respectively and had been solicited as small
   business set-asides because they were anticipated for award under
   $100,000. AR, Tabs E and F. These contracts were for a larger-sized spill
   containment berm, identified as NSN 4235-01-419-4801. AR, Tabs E and F.

   [5] Basic also questions whether or not Bowhead can properly be considered
   an 8(a) contractor under the SBA's regulations. Challenges of a small
   business's size status, or eligibility for award under the 8(a) program,
   are for review solely by the SBA, not our Office. 4 C.F.R. sect. 21.5(b)
   (2007). In addition, the protester's complaints about DLA's decision to
   qualify Bowhead's "Throw N Go" berm as an equal product--an ongoing theme
   in these filings--are raised over a year after Basic knew the item had
   been approved. This matter is raised far too late for consideration in our
   bid protest forum. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2).

   [6] The SBA also concluded that the adverse impact concept does not apply
   to this procurement because the SBA has determined that based on the facts
   here, this procurement is considered a new requirement because it involves
   a much smaller quantity than the larger ongoing competitive set-aside
   procurement. See 13 C.F.R. sect. 124.504(c)(1)(ii), (c)(2). In addition,
   as noted above, the award to Bowhead that was canceled was conducted using
   an unrestricted solicitation, so nothing about that procurement triggers
   these restrictions either.