Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

Decision 

Matter of: Information Ventures, Inc. 

File: B-400604 

Date: December 22, 2008 

Bruce H. Kleinstein, Esq., for the protester. 

Richard G. Bergeron, Esq., Department of Health and Human Services, for the 

agency. 

Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest challenging agency’s decision not to set aside procurement for small 

businesses is denied where agency’s market research demonstrated that agency was 

not likely to receive proposals from at least two small businesses capable of 

performing the required services. 

DECISION 

Information Ventures, Inc. (IVI), a small business concern in Philadelphia, 

Pennsylvania, protests the Department of Health and Human Services’ (HHS), 

National Institute of Allergy and Infectious Diseases’ (NIAID) decision not to set 

aside for small businesses its requirement for public liaison support services.1

We deny the protest. 

On April 16, 2008, NIAID posted a “sources sought” notice on the Federal Business 

Opportunities (FedBizOpps) website for a contractor to provide the NIAID’s Office 

of Communications and Government Relations with comprehensive communications 

and public liaison support. The notice requested capability statements from 

 

1

 NIAID conducts and supports research in infectious, immunologic, and allergic 

diseases which has led to new therapies, vaccines, and diagnostic tests. NIAID’s 

research has been at the forefront of the nation’s biodefense and global health 

initiatives. 
interested small businesses which included references for similar work performed or 

currently being performed, the dollar value of that work, and which demonstrated 

the firm’s ability to perform the following services: strategic planning; media 

outreach and assessment of needs; inquiry response; web-based communications; 

writing support; materials development and graphics support; exhibit support; 

conference management; database development and maintenance; mailings; 

video/audiotape; other historical archiving; and the administration and management 

of the contract. Agency Report (AR) exh. 3, Sources Sought Notice. 

Twenty-six small businesses, including IVI, submitted capability statements in 

response to the “sources sought” notice. These capability statements were reviewed 

by the agency and, in consultation with the project officer, the contracting officer 

determined that none of the firms had demonstrated the capability and experience to 

successfully perform all areas of the required services.2

 More specifically, the agency 

found that several of the small businesses failed to demonstrate in their capability 

statements an understanding of the required services; while other firms failed to 

demonstrate relevant experience in one or more of the identified requirements. For 

example, the agency found that IVI’s capability statement did not demonstrate that 

the firm had relevant experience in the area of media outreach and assessment of 

needs. AR exh. 6, Agency’s Evaluation Comments, at 4. 

The contracting officer conducted additional market research by reviewing the 

acquisition history for these services. Specifically, he considered the responses the 

agency received to the prior procurement, noting that one small business offeror was 

no longer small and that the other had not submitted a technically acceptable 

proposal. In addition, the contracting officer reviewed the history of similar 

procurements within HHS and found that those resulting in awards to small 

businesses were smaller in scope than the current requirements. Contracting 

Officer’s Statement at 1-2. The contracting officer therefore concluded that there 

were no small businesses potentially capable of performing the current 

requirements. 

Based on the information gathered, the contracting officer determined that there was 

not a reasonable expectation of receiving offers from two or more small business 

concerns capable of performing the stated requirements and decided that the 

procurement should be competed on an unrestricted basis. Id. at 2. The agency’s 

small business specialist and the Small Business Administration’s (SBA) 

Procurement Center Representative (PCR) both concurred with the contracting 

 2

 The protester was not represented by counsel who could obtain access to 

nonpublic information pursuant to the terms of a protective order. Accordingly, our 

discussion of some aspects of the procurement is necessarily general; our 

conclusions, however, are based on our review of the entire record, including 

nonpublic information.

Page 2 B-400604 
officer’s conclusion that it was appropriate to issue the solicitation on an 

unrestricted basis. AR exh. 7, SBA Review Form. The agency subsequently posted a 

presolicitation synopsis on FedBizOpps announcing that the procurement would be 

competed on an unrestricted basis. Id. exh. 8, Presolicitation Notice. 

IVI contends that the agency improperly failed to set aside this procurement for 

small businesses, alleging that the agency’s market research was flawed and does not 

support the determination to issue the solicitation on an unrestricted basis. 

Acquisitions with an anticipated dollar value of more than $100,000, such as the one 

here, must be set aside for small businesses if the agency makes two determinations, 

only the first of which is at issue here: that there is a reasonable expectation that 

offers will be received from two or more responsible small business concerns, and 

that award will be made at a fair market price. Federal Acquisition Regulation 

§ 19.502-2(b); American Artisan Prods., Inc., B-292380, July 30, 2003, 2003 CPD ¶ 132 

at 5-6. 

The determination as to whether there is a reasonable expectation of receiving offers 

from two or more small businesses that are capable of performing the required work 

is a matter of business judgment within the contracting officer’s discretion that we 

will not disturb absent a showing that it was unreasonable. ViroMed Labs., 

B-298931, Dec. 20, 2006, 2007 CPD ¶ 4 at 3-4; Information Ventures, Inc., B-279924, 

Aug. 7, 1998, 98-2 CPD ¶ 37 at 3. While the use of any particular method of assessing 

the availability of capable small businesses is not required, 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, may all constitute adequate grounds for a contracting officer’s 

decision not to set aside a procurement. Quality Hotel Westshore; Quality Inn Busch 

Gardens, B-290046, May 31, 2002, 2002 CPD ¶ 91 at 3-4. 

Here, IVI alleges that the agency’s market research is flawed in a number of ways. 

For instance, the protester contends that the capability statements were evaluated 

by the agency “as if they were proposals,” Protest at 2; that the agency unreasonably 

evaluated the small businesses’ ability to “perform each and every task” listed in the 

sources sought notice; and that the agency used undisclosed needs contained in the 

prior contract to evaluate the capability statements received. Protester’s Comments 

at 6-9. These arguments do not provide a basis to sustain the protest. Rather, the 

record establishes that the agency did in fact conduct adequate market research to 

determine whether it was reasonable to set aside the acquisition for small business 

concerns. 

As discussed above, the agency’s determination was based on its review of the 

information provided by small business concerns in their responses to the “sources 

sought” notice and review of the procurement history for these or similar services. 

Moreover, the record confirms that the agency’s small business specialist and the 

SBA’s PCR were integrated in the contracting officer’s decision-making process and 

they both concurred with his business judgment that the requirement should be 

Page 3 B-400604 
competed on an unrestricted basis. While the protester argues that this 

determination was unreasonably based on a flawed research analysis, the protester 

has produced no credible evidence to support any of its allegations. 

As a specific example, the protester argues that it was not reasonable for the agency 

to consider during its review whether the small business respondents had 

experience providing similar services. In this regard, the protester argues that the 

small business firms could have supplemented their experience with consultants, or 

other vendors.3

 Protester’s Comments at 7. While we agree with the protester that 

small businesses might be able to supplement their experience with consultants--

and, in fact, a prior small business vendor providing these services might have done 

exactly that--we will not conclude that the agency violated a procurement law or 

regulation--the standard we must apply to sustain this challenge--in performing this 

review. In short, we are not prepared to conclude that it was improper for the 

agency to assess whether the small business respondents had experience similar to 

the required services here, and we note for the record, the agency’s SBA 

representatives were unwilling to do so as well. 

We find IVI’s arguments reflect nothing more than its disagreement with the agency’s 

judgment regarding the viability of a set-aside, and do not establish a basis for our 

Office to question the agency’s determination. Information Ventures, Inc., B-279924, 

supra, at 5. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 3

 In support of this contention, the protester points out several instances where the 

previous vendor providing these services relied, at least in part, on outside 

consultants. Protester’s Comments at 7-8. 

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