TITLE: B-309911, FitNet Purchasing Alliance, November 2, 2007
BNUMBER: B-309911
DATE: November 2, 2007
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B-309911, FitNet Purchasing Alliance, November 2, 2007

   Decision

   Matter of: FitNet Purchasing Alliance

   File: B-309911

   Date: November 2, 2007

   Raul Espinosa for the protester.

   Capt. Charles D. Halverson, Department of the Army; Thedlus L. Thompson,
   Esq., General Services Administration; and John W. Klein, Esq., and
   Laura Mann Eyester, Esq., Small Business Administration, for the agencies.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging an agency's decision not to set aside for small
   businesses an order under the Federal Supply Schedule (FSS) program valued
   at approximately $12,000 is dismissed where the protester does not hold an
   FSS contract, and therefore is not an interested party to pursue this
   matter.

   DECISION

   FitNet Purchasing Alliance, a small business, protests the terms of a
   reverse auction under request for quotations (RFQ) No. SWCSKQ-7177-N035 by
   the Department of the Army for 50 wardrobe lockers to be delivered to Fort
   Bragg, North Carolina. FitNet argues that this requirement must be set
   aside for small businesses.

   We dismiss the protest.

   On July 23, 2007, the Fort Bragg Directorate of Contracting used the
   FedBid website to commence an electronic reverse auction for 50 wardrobe
   lockers at a target price of $12,500.[1] This posting was designated as
   "Buy No. 43672_01." The posting listed a closing time of "15:00 EST" on
   October 2. The posting also stated "Set-Aside: N/A (All Sellers can bid)"
   and "Contract Type: GSA Schedules Only." Agency Report (AR), Tab 3, RFQ,
   at 2.

   The posting thereby informed readers that the requirement was not set
   aside for small businesses, and that only vendors holding contracts under
   the General Services Administration's (GSA) Federal Supply Schedule (FSS)
   program were invited to submit quotations.

   On July 26, FitNet filed this protest, objecting to several aspects of the
   procurement; principally, that the requirement must be set aside for small
   businesses. During the course of the protest, our Office inquired whether
   FitNet holds an FSS contract. In answer, GSA advised that "to date, no
   Schedule contracts have been awarded to either FitNet Purchasing Alliance
   or FitNet International Corporation, the legal name of the company."
   Letter from GSA Assistant Commissioner to GAO, Sept. 27, 2007, at 1.
   FitNet does not dispute this fact. Protester's Interested Party Brief,
   Oct. 5, 2007, at 2.

   During the course of this protest, we sought the views of both the GSA,
   which administers the FSS program, and the Small Business Administration,
   as well as the Army. The submissions made clear that these agencies do not
   agree about how the set-aside requirements of the Small Business Act, 15
   U.S.C. sect. 644(j) (2000), apply to orders placed against the FSS. In our
   view, however, regardless of how these requirements apply to the FSS, a
   protester that does not hold an FSS contract is not an interested party to
   challenge a decision not to set aside an individual order.

   Under the bid protest provisions of the Competition in Contracting Act of
   1984, 31 U.S.C. sections 3551-56 (2000 & Supp. V 2005), only an
   "interested party" may protest a federal procurement. That is, a protester
   must be an actual or prospective supplier whose direct economic interest
   would be affected by the award of a contract or the failure to award a
   contract. Bid Protest Regulations, 4 C.F.R. sect. 21.0(a) (2007).
   Determining whether a party is interested involves consideration of a
   variety of factors, including the nature of issues raised, the benefit or
   relief sought by the protester, and the party's status in relation to the
   procurement. Four Winds Servs., Inc., B-280714, Aug. 28, 1998, 98-2 CPD
   para. 57.

   Here, the Army issued a solicitation seeking competition among holders of
   FSS contracts--an approach which meets the statutory requirements for
   using full and open competition. 41 U.S.C. sect. 259(b)(3) (2000); Federal
   Acquisition Regulation (FAR) sect. 6.102(d)(3); Tarheel Specialties, Inc.,
   B-298197, B-298197.2, July 17, 2006, 2006 CPD para. 140 at 3. Given that
   the decision was made to procure via the FSS, FitNet, which does not hold
   an FSS contract, is not an interested party to protest the terms of the
   solicitation. Sales Res. Consultants, Inc., B-284943, B-284943.2,
   June 9, 2000, 2000 CPD para. 102 at 5.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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   [1] FedBid, Inc. is a commercial online procurement services provider that
   runs a website at FedBid.com, which among other things, hosts reverse
   auctions.