TITLE: B-400163, Commonwealth Home Health Care, Inc., July 24, 2008
BNUMBER: B-400163
DATE: July 24, 2008
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B-400163, Commonwealth Home Health Care, Inc., July 24, 2008

   Decision

   Matter of: Commonwealth Home Health Care, Inc.

   File: B-400163

   Date: July 24, 2008

   Robert A. Giannini for the protester.
   Harold W. Askins III, Esq., Department of Veterans Affairs, for the
   agency.
   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency improperly set aside procurement for small business
   concerns is denied where the agency performed market research and
   reasonably concluded that adequate small business competition could be
   expected.

   DECISION

   Commonwealth Home Health Care, Inc. protests the terms of request for
   proposals (RFP) No. VA-247-08-RP-0160, issued by the Department of
   Veterans Affairs (VA) for supplies and services supporting the provision
   of oxygen to veterans in Decatur, Georgia and the surrounding area.
   Commonwealth argues that the solicitation was improperly restricted to
   small business concerns and was improperly categorized as a "supply"
   contract, as opposed to a contract for "services."

   We deny the protest.

   Commonwealth is the incumbent VA contractor providing home oxygen to
   veterans in the Decatur, Georgia area. The RFP provides for the award of a
   requirements contract to provide oxygen and rental oxygen equipment for a
   base year with 4 option years. In addition to the supply of oxygen and
   rental equipment, the contractor is to provide a variety of services,
   including equipment delivery and set-up, patient education, re-supply,
   emergency services (for delivery of oxygen), and reporting. RFP, Statement
   of Work, at 13-25.

   The VA states that it initially issued the RFP on an unrestricted basis.
   Subsequently, another firm filed a protest challenging the VA's issuance
   on an unrestricted basis of a similar solicitation for home oxygen in the
   area of Atlanta, Georgia; that protest prompted the VA to take corrective
   action in the form of conducting new market research to determine the
   potential for small business competition. See Eagle Home Medical
   Corp.--Costs, B-299821.3, Feb. 4, 2008, 2008 CPD para. 41. The contracting
   officer in this case then decided to conduct market research to gauge the
   potential for small business competition in the procurement at issue here,
   which included reviewing relevant small business databases, researching
   and contacting firms, and obtaining advice from the agency's Office of
   Small Disadvantaged Business Utilization. As a result of those efforts,
   the agency identified numerous small business firms which it believed were
   capable of meeting the solicitation requirements. The contracting officer
   subsequently re-issued the solicitation as a total small business
   set-aside, under NAICS Code 532291--Home oxygen equipment, with a size
   standard of $6.6 million. The agency also designated the solicitation as
   one for supplies, as opposed to services, thereby invoking the Small
   Business Act's "non-manufacturer rule."[1] The record reflects that in
   making its set-aside determination, the agency specifically considered the
   impact of the non-manufacturer rule on the pool of potential small
   business competitors. Agency Report (AR), Tab 1, Contracting Officer's
   Statement; AR, Tab 4, Small Business Research.

   Commonwealth filed its protest challenging the set-aside decision and
   designation of the requirements as "supplies" prior to the solicitation
   closing date of May 30, 2008. Subsequently, the agency received offers
   from six small business concerns in response to the solicitation.

   Under Federal Acquisition Regulation (FAR) sect. 19.502-2(b), a
   procurement with an anticipated dollar value of more than $100,000, such
   as the one here, must be set aside for exclusive small business
   participation when there is a reasonable expectation that offers will be
   received from at least two responsible small business concerns and that
   award will be made at a fair market price. 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. National Linen Serv., B-285458,
   Aug. 22, 2000, 2000 CPD para. 138 at 2. 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 that include responses to sources sought
   announcements. SAB Co., B-283883, Jan. 20, 2000, 2000 CPD para. 58 at 1-2;
   PR Newswire, B-279216, Apr. 23, 1998, 98-1 CPD para. 118 at 2. 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. Admiral Towing and Barge Co., B-291849, B-291849.2, Mar. 6,
   2003, 2003 CPD para. 164 at 3-4. We will not question a small business
   set-aside determination where the record shows that the evidence before
   the contracting officer was adequate to support the reasonableness of the
   conclusion that small business competition reasonably could be expected.
   National Linen Serv., supra, at 2.

   Here, the protester questions the accuracy and reliability of the agency's
   market research and opines that it is simply not possible for a small
   business concern meeting the designated size standard to perform the
   contract from a financial or operational standpoint. Protester's Comments
   at 2. The record, however, establishes that the agency did in fact conduct
   adequate market research to determine whether it was reasonable to set
   aside the requirement for small business concerns, and, based upon the
   results of this research, reasonably determined that it could expect small
   business competition.[2] While the protester argues that the set-aside
   determination was unreasonable because it does not believe that a small
   business is capable of performing the work, this argument reflects nothing
   more than the protester's disagreement with the agency's judgment
   regarding the viability of a set-aside, which does not establish a basis
   for our Office to question the agency's determination. IBV, Ltd.,
   B-311244, Feb. 21, 2008, 2008 CPD para. 47 at 2.

   The protester also challenges the agency's decision to classify the
   solicitation as one for supplies as opposed to services. However, given
   our conclusion that the procurement was properly set aside for small
   business concerns, the protester is not eligible to compete under the RFP,
   and therefore is not an interested party to raise this issue.[3] See Bid
   Protest Regulations, 4 C.F.R. sections 21.0(a), 21.1(a) (2008).

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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   [1] The Small Business Act's non-manufacturer rule provides that the offer
   of a non-manufacturer small business concern under a small business
   set-aside for "any procurement contract for the supply of a product" can
   be considered, provided, among other things, that the small business
   concern represents that it will supply the product of a domestic small
   business manufacturer or processor, or a waiver of this requirement is
   granted by the Small Business Administration (SBA). 15 U.S.C. sect.
   637(a)(17) (2000). This rule is also included in the SBA's regulations. 13
   C.F.R. sect. 121.406 (2007). Following the decision of the United States
   Court of Federal Claims in Rotech Healthcare, Inc. v. United States, 71
   Fed. Cl. 393 (2006), the VA determined that the requirements at issue
   should be classified as supplies, which resulted in the application of the
   "non-manufacturer rule" to the solicitation.

   [2] In this regard, we note that the agency's conclusions regarding the
   potential for obtaining competitive proposals from small businesses appear
   to have been validated by the fact that it received offers from six small
   business firms in response to the solicitation.

   [3] The protester does not argue that changing the classification of the
   solicitation from supplies to services would have reduced the pool of
   eligible small business firms and thereby affected the agency's set-aside
   determination. Rather, the protester suggests just the opposite, that by
   categorizing the requirement as "supplies"--and thereby triggering
   application of the SBA's non-manufacturer rule--it is more difficult for
   small business concerns to perform the work.