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B-147973, APR. 9, 1962

B-147973 Apr 09, 1962
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THE SUBJECT INVITATION WAS ISSUED BY THE U.S. THE INVITATION WAS 100 PERCENT RESTRICTED FOR AWARD TO SMALL BUSINESS FIRMS. BIDS WERE OPENED ON DECEMBER 27. 3 BIDS WERE RECEIVED AS FOLLOWS: CHART ITEM NO. 1 2 3 COBEY CORP. $708.76 EA. $480.76 EA. $612.00 EA. UPON COMPLETION OF THE BID EVALUATION IT WAS DETERMINED THAT COBEY CORPORATION WAS LOW RESPONSIVE BIDDER FOR ITEMS NO. 2 AND 3. ACCORDINGLY CONTRACT N160-/249) 29892 WAS ISSUED TO COBEY ON JANUARY 10. THE CONTRACTING OFFICE RECEIVED YOUR TELEGRAM PROTESTING AWARD TO COBEY ON THE BASIS THAT IT WAS NOT QUALIFIED AS A SMALL BUSINESS CONCERN. THE SMALL BUSINESS ADMINISTRATION HAS NOT UNDERTAKEN TO MAKE A SIZE DETERMINATION AS TO COBEY AT THIS TIME FOR THE REASON THAT THE PROTEST WAS NOT RECEIVED UNTIL AFTER THE AWARD.

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B-147973, APR. 9, 1962

TO DEMPSTER BROTHERS INCORPORATED:

THIS REFERS TO YOUR TELEGRAM OF JANUARY 16, 1962, AND LETTER OF JANUARY 22, 1962, PROTESTING THE AWARD OF ITEMS NO. 2 AND 3 OF INVITATION FOR BIDS NO. 160-555-62 TO THE COBEY CORPORATION.

THE SUBJECT INVITATION WAS ISSUED BY THE U.S. NAVY YARDS AND DOCKS SUPPLY OFFICE, PORT HUENEME, CALIFORNIA, ON NOVEMBER 27, 1961, COVERING 3 ITEMS OF REFUSE CONTAINERS. ITEM NO. 1 CALLED FOR 10 UNITS, ITEM NO. 2 CALLED FOR 1 UNIT, AND ITEM NO. 3 FOR 24 UNITS, ALL AS SPECIFIED BY THE INVITATION. THE INVITATION WAS 100 PERCENT RESTRICTED FOR AWARD TO SMALL BUSINESS FIRMS.

BIDS WERE OPENED ON DECEMBER 27, 1961, AND 3 BIDS WERE RECEIVED AS FOLLOWS:

CHART

ITEM NO.

1 2 3 COBEY CORP. $708.76 EA.

$480.76 EA. $612.00 EA. DEMPSTER BROS. 669.04 EA. 575.97 EA. 669.54 EA. FALCON ENG. 1,476.00 EA. 977.00 EA. 1,457.00 EA.

COBEY CORPORATION CERTIFIED ITSELF AS SMALL BUSINESS. UPON COMPLETION OF THE BID EVALUATION IT WAS DETERMINED THAT COBEY CORPORATION WAS LOW RESPONSIVE BIDDER FOR ITEMS NO. 2 AND 3. ACCORDINGLY CONTRACT N160-/249) 29892 WAS ISSUED TO COBEY ON JANUARY 10, 1962, IN AN AMOUNT OF $15,168.76.

THE RECORD SHOWS THAT ON JANUARY 12, 1962, AFTER THE AWARD TO COBEY, THE CONTRACTING OFFICE RECEIVED YOUR TELEGRAM PROTESTING AWARD TO COBEY ON THE BASIS THAT IT WAS NOT QUALIFIED AS A SMALL BUSINESS CONCERN. THE SMALL BUSINESS ADMINISTRATION HAS NOT UNDERTAKEN TO MAKE A SIZE DETERMINATION AS TO COBEY AT THIS TIME FOR THE REASON THAT THE PROTEST WAS NOT RECEIVED UNTIL AFTER THE AWARD.

SECTION 1-703 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT A CONTRACTING OFFICER IS REQUIRED TO ACCEPT A SMALL BUSINESS SELF CERTIFICATION AT FACE VALUE IN THE ABSENCE OF A TIMELY WRITTEN PROTEST BY ANOTHER INTERESTED BIDDER. SEE 40 COMP. GEN. 550. A CONTRACT AWARDED IN GOOD FAITH ON THE BASIS OF A BIDDER'S STATEMENT THAT IT IS A SMALL BUSINESS CONCERN IS NOT VOID AB INITIO BUT IS VOIDABLE ONLY AT THE OPTION OF THE GOVERNMENT. SEE B-137689, JANUARY 21, 1959. WE ARE OF THE VIEW THAT CANCELLATION OF THE CONTRACT AWARDED TO COBEY IS NOT REQUIRED IN THE ABSENCE OF EVIDENCE THAT COBEY CERTIFIED ITSELF IN BAD FAITH AS A SMALL BUSINESS CONCERN. SEE B-146438, OCTOBER 16, 1961 (PUBLISHED AT 41 COMP. GEN. - ); ALSO 41 COMP. GEN. 47; 34 COMP. GEN. 115. SINCE A SHOWING OF BAD FAITH HAS NOT BEEN ESTABLISHED IN THE RECORD BEFORE US, WE WILL NOT DISTURB THE AWARD TO COBEY.

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