B-166583, AUG. 18, 1969

B-166583, AUG. 18, 1969

BID PROTEST - SMALL BUSINESS STATUS - TIMELY FILING OF PROTEST DECISION TO SERVICON, INC., DENYING PROTEST AGAINST AWARD OF CONTRACT TO DURACLEAN AARONROD CO. ON BASIS THAT DURACLEAN IS NOT A SMALL BUSINESS CONCERN AND IS NOT ENTITLED TO AWARD UNDER TOTAL SET ASIDE FOR SMALL BUSINESS CONCERNS. SINCE PROTEST AGAINST SMALL BUSINESS STATUS WAS FILED SEVERAL MONTHS AFTER BID OPENING PROTEST IS NOT A TIMELY PROTEST UNDER REGULATIONS AND THEREFORE PROTEST IS DENIED.

TO SERVICON, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER BOTH DATED JUNE 25, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO DURACLEAN AARONROD COMPANY, UNDER ADVERTISED SOLICITATION NO. WA-NX-R-1951-3-27-69, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). YOU HAD PREVIOUSLY PROTESTED AN AWARD TO DURACLEAN AARONROD UNDER THIS INVITATION ON OTHER GROUNDS AND BY OUR DECISION, B-166583, JUNE 23, 1969, YOUR PROTEST WAS DENIED.

THE BASIS FOR THE PROTEST IN YOUR LETTER OF JUNE 25, 1969, IS THAT DURACLEAN AARONROD IS A FRANCHISE OF NATIONAL DURACLEAN COMPANY; THEREFORE, DURACLEAN AARONROD IS NOT A SMALL BUSINESS CONCERN AND IS NOT ENTITLED TO AN AWARD SINCE THIS PROCUREMENT IS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS. YOU HAVE ENCLOSED A COPY OF AN OPINION BY THE FINANCIAL ASSISTANCE DIVISION OF THE SMALL BUSINESS ADMINISTRATION'S (SBA) OFFICE IN RICHMOND, VIRGINIA. IT WAS CONCLUDED IN THAT OPINION THAT THE CONCERN SEEKING FINANCIAL ASSISTANCE COULD NOT BE CONSIDERED AS BEING ,INDEPENDENTLY OPERATED" SINCE THAT CONCERN'S RIGHT TO MAKE MANAGEMENT DECISIONS HAD BEEN SURRENDERED TO ANOTHER COMPANY UNDER A PURPORTED FRANCHISE AGREEMENT. THE SBA OFFICE CONCLUDED THAT IN EFFECT THE TWO CONCERNS WERE AFFILIATED.

YOUR PROTEST AGAINST THE SMALL BUSINESS STATUS OF DURACLEAN AARONROD WAS FORWARDED TO SBA BY THE GENERAL SERVICES ADMINISTRATION (GSA). BY LETTER OF JULY 28, 1969, A COPY OF WHICH WAS FORWARDED TO YOU, THE SBA OFFICE IN RICHMOND, VIRGINIA, DECLINED TO CONSIDER YOUR PROTEST SINCE IT WAS NOT TIMELY FILED IN ACCORDANCE WITH 13 CODE OF FEDERAL REGULATIONS (CFR) 121.3 -2 (T), FEDERAL PROCUREMENT REGULATIONS (FPR) 1 1.703-2 (B). THE REGULATIONS PROVIDE THAT A PROTEST AGAINST THE SMALL BUSINESS STATUS OF ANOTHER BIDDER MUST BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE CLOSE OF BUSINESS ON THE FIFTH WORKING DAY AFTER THE BID OPENING DATE.

SEVERAL MONTHS HAD ELAPSED BETWEEN THE TIME OF BID OPENING AND YOUR CHALLENGE AGAINST THE SMALL BUSINESS STATUS OF DURACLEAN AARONROD COMPANY. IN THE CIRCUMSTANCES YOUR PROTEST IS NOT A VALID PROTEST IN ACCORDANCE WITH THE ABOVE REGULATIONS. SEE B-160285, DECEMBER 13, 1966.