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B-186167, APR 15, 1976

B-186167 Apr 15, 1976
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PROTEST FROM BIDDER WHICH QUESTIONS SMALL BUSINESS SIZE STATUS OF OTHER BIDDERS IS NOT FOR CONSIDERATION BY GENERAL ACCOUNTING OFFICE SINCE CONCLUSIVE AUTHORITY OVER QUESTION OF SIZE STATUS IS VESTED BY STATUTE IN SMALL BUSINESS ADMINISTRATION. KIRLIN IS IMPROPER BECAUSE NEITHER BIDDER IS A SMALL BUSINESS UNDER THE APPLICABLE SIZE STANDARD. WE HAVE BEEN ADVISED BY SPRADLIN THAT IT HAS APPEALED THE ABOVE DECISION TO THE SBA SIZE APPEALS BOARD. THE SMALL BUSINESS ADMINISTRATION (SBA) IS EMPOWERED TO DETERMINE A BUSINESS CONCERN'S SIZE STATUS FOR PROCUREMENT PURPOSES. OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS MUST ACCEPT AS CONCLUSIVE ANY DETERMINATION REACHED BY SBA AS TO WHICH CONCERNS ARE TO BE DESIGNATED AS SMALL BUSINESS.

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B-186167, APR 15, 1976

PROTEST FROM BIDDER WHICH QUESTIONS SMALL BUSINESS SIZE STATUS OF OTHER BIDDERS IS NOT FOR CONSIDERATION BY GENERAL ACCOUNTING OFFICE SINCE CONCLUSIVE AUTHORITY OVER QUESTION OF SIZE STATUS IS VESTED BY STATUTE IN SMALL BUSINESS ADMINISTRATION.

SPRADLIN CORPORATION:

SPRADLIN CORPORATION (SPRADLIN) HAS PROTESTED AGAINST THE AWARD TO EITHER OF THE TWO LOW BIDDERS UNDER SMALL BUSINESS SET-ASIDE INVITATION FOR BIDS (IFB) NO. 263-76-B(67)-0082, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.

SPRADLIN, THE THIRD LOW BIDDER, CONTENDS THAT AN AWARD TO EITHER WILLIAM SCHLOSSER COMPANY, INC. OR JOHN J. KIRLIN IS IMPROPER BECAUSE NEITHER BIDDER IS A SMALL BUSINESS UNDER THE APPLICABLE SIZE STANDARD. SPRADLIN PROTESTED THE SIZE STATUS OF THE BIDDERS TO THE CONTRACTING OFFICER WHO FORWARDED THE PROTEST TO THE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE, PHILADELPHIA, PENNSYLVANIA. THE SBA DECLINED TO TAKE ANY ACTION ON THE BASIS THAT THE PROTEST LACKED ANY "SPECIFIC DETAILED EVIDENCE" TO SUPPORT SPRADLIN'S CLAIM. WE HAVE BEEN ADVISED BY SPRADLIN THAT IT HAS APPEALED THE ABOVE DECISION TO THE SBA SIZE APPEALS BOARD.

PURSUANT TO 15 U.S.C. SEC. 637(B)(6) (1970), THE SMALL BUSINESS ADMINISTRATION (SBA) IS EMPOWERED TO DETERMINE A BUSINESS CONCERN'S SIZE STATUS FOR PROCUREMENT PURPOSES. OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS MUST ACCEPT AS CONCLUSIVE ANY DETERMINATION REACHED BY SBA AS TO WHICH CONCERNS ARE TO BE DESIGNATED AS SMALL BUSINESS. DISCHARGE OF THIS RESPONSIBILITY, SBA HAS PROMULGATED REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW (OTIS STEEL PRODUCTS CORPORATION V. UNITED STATES, 161 CT.CL. 694 (1963)), FOUND AT PART 121 OF CHAPTER I OF THE CODE OF FEDERAL REGULATIONS (C.F.R.), TITLE 13 (1975).

SECTION 121.3-4, "SIZE DETERMINATIONS," STATES IN PERTINENT PART THAT:

"ORIGINAL SIZE DETERMINATIONS SHALL BE MADE BY THE REGIONAL DIRECTOR, OR HIS DELEGATEE, SERVING THE REGION IN WHICH THE PRINCIPAL OFFICE OF THE CONCERN (NOT INCLUDING ITS AFFILIATES) WHOSE SIZE IS IN QUESTION IS LOCATED, ***. SUCH DETERMINATION SHALL BE FINAL UNLESS APPEALED IN THE MANNER PROVIDED IN SEC. 121.3-6. FOR THE PURPOSE OF GOVERNMENT PROCUREMENTS OR SALES A SIZE DETERMINATION SHALL BE MADE ONLY IN THE EVENT OF A PROTEST PURSUANT TO SEC. 121.2-5, ***."

SECTION 121.3-6(A) PROVIDES THAT THE SIZE APPEALS BOARD SHALL REVIEW APPEALS FROM DETERMINATIONS MADE PURSUANT TO SECS. 121.3-4 AND 121.3-5 AND SHALL MAKE FINAL DECISIONS AS TO WHETHER SUCH DETERMINATIONS SHOULD BE AFFIRMED, REVERSED, OR MODIFIED. SECTIONS 121.3-6(B)(1)(I) AND (II) PROVIDE THAT AN APPEAL MAY BE FILED WITH THE SIZE APPEALS BOARD BY ANY CONCERN OR INTERESTED PARTY WHICH HAS BEEN ADVERSELY AFFECTED BY A DECISION OF A REGIONAL DIRECTOR, HIS DELEGATEE, OR BY THE ASSOCIATE ADMINISTRATOR FOR FINANCIAL ASSISTANCE. THE TIME FOR FILING AN APPEAL IS SET FORTH IN SECTION 121.3-6(B)(3)(I). AN OPPORTUNITY FOR RECONSIDERATION BY THE SIZE APPEALS BOARD IS PROVIDED IN SECTION 121.3 6(G)(5) WHICH STATES THAT THE DECISION OF THE SIZE APPEALS BOARD SHALL CONSTITUTE THE FINAL ADMINISTRATIVE REMEDY OF SBA. WHEN VIEWED IN CONJUNCTION WITH 15 U.S.C. SEC. 637(B)(6) (1970), THE SBA REGULATIONS CLEARLY ESTABLISH IT AS THE SOLE ADJUDICATOR OF THE SIZE STANDARD ISSUE IN QUESTION. SEE 53 COMP. GEN. 434, 435 (1973); MATTER OF NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, B-181511, JULY 15, 1974; 74-2 CPD 29, AND MATTER OF VIRGINIA RESEARCH INCORPORATED, B-181371, JUNE 25, 1974; 74-1 CPD 344.

SINCE IT IS THE DUTY OF SBA AND NOT GAO TO DETERMINE THE SIZE STATUS OF A CONCERN, THE PROTEST IS NOT FOR CONSIDERATION BY OUR OFFICE AND WE ARE CLOSING OUR FILE ON THE MATTER WITHOUT FURTHER ACTION.

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