B-149340, OCT. 1, 1962

B-149340, OCT. 1, 1962

TO TRI-WALL CONTAINERS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 12, 1962, IN REPLY TO OUR DECISION DATED AUGUST 21, 1962, DENYING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT UNDER GSA PROCUREMENT NO. WA-NC-R-100793 TO CONNELLY CONTAINERS, INC., ON JUNE 30, 1962, FOR THE FURNISHING OF VARIOUS QUANTITIES OF FIBREBOARD, CORRUGATED, TRIPLE WALL BOXES.

WITH YOUR LETTER OF SEPTEMBER 12TH THERE WAS ENCLOSED A COPY OF A LETTER DATED AUGUST 14, 1962, FROM THE CHIEF, PROCUREMENT AND TECHNICAL ASSISTANCE DIVISION, SMALL BUSINESS ADMINISTRATION, PHILADELPHIA 7, PENNSYLVANIA, ADVISING THAT THE DIRECTOR, OFFICE OF SMALL BUSINESS SIZE STANDARDS, HAD DECIDED THAT CONNELLY CONTAINERS, INC., IS NOT A SMALL BUSINESS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT. IN VIEW OF THE CURRENT INFORMATION, YOU REQUEST OUR DECISION IN THE MATTER ON THE BASIS OF YOUR ORIGINAL PROTEST.

THE BASIS FOR YOUR ORIGINAL PROTEST WAS THAT DESPITE THE FACT THE PROCUREMENT IN THIS CASE WAS A 100 PERCENT SET-ASIDE FOR SMALL BUSINESS, AN AWARD WAS MADE TO CONNELLY CONTAINERS, INC., WITHOUT THE BENEFIT OF A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION AS TO THE SIZE OF THE SUCCESSFUL BIDDER, AND DESPITE THE FACT THAT A PROTEST WAS FILED WITH THE CONTRACTING OFFICER PRIOR TO AWARD.

IT WAS POINTED OUT IN OUR DECISION OF AUGUST 21, 1962, THAT THE MATTER OF YOUR PROTEST WAS BROUGHT TO THE ATTENTION OF THE SMALL BUSINESS ADMINISTRATION WHICH VERBALLY INFORMED THE GENERAL SERVICES ADMINISTRATION UNDER DATE OF JUNE 27, 1962, THAT CONNELLY CONTAINERS, INC., WAS A SMALL BUSINESS CONCERN. THE RECORD IN THIS CASE INDICATES THAT BY REASON OF THE RECEIPT OF ADDITIONAL INFORMATION WHICH REQUIRED FURTHER INVESTIGATION, THE SMALL BUSINESS ADMINISTRATION BY TELEGRAM DATED JUNE 29, 1962, RESCINDED WITHOUT PREJUDICE THE SIZE DETERMINATION OF CONNELLY CONTAINERS, INC.

IN THE REPORT MADE TO OUR OFFICE BY THE GENERAL SERVICES ADMINISTRATION UNDER DATE OF AUGUST 2, 1962, IT WAS STATED THAT DUE TO THE NEEDS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, A CONTRACT WAS AWARDED TO CONNELLY CONTAINERS, INC., UNDER DATE OF JUNE 30, 1962, PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-1.703-2 (E). BY A TELEGRAM DATED JULY 13, 1962, THE SMALL BUSINESS ADMINISTRATION ADVISED THE GENERAL SERVICES ADMINISTRATION THAT UPON FURTHER INVESTIGATION AND CONSIDERATION IT HAD BEEN DETERMINED THAT CONNELLY CONTAINERS, INC., WAS A SMALL BUSINESS CONCERN FOR GOVERNMENT PROCUREMENT UNDER THE INDICATED INVITATION FOR BIDS.

THE LETTER OF AUGUST 14, 1962, IS, OF COURSE, A DIRECT REVERSAL OF THE ACTION TAKEN IN THE TELEGRAM DATED JULY 13, 1962. IT MAY BE POINTED OUT THAT SUBPARAGRAPH 2 (D) OF THE CITED SECTION OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT THE SMALL BUSINESS ADMINISTRATION WILL, WITHIN TEN WORKING DAYS, IF POSSIBLE, AFTER RECEIPT OF A PROTEST, INVESTIGATE AND DETERMINE THE SMALL BUSINESS STATUS OF THE PROTESTED BIDDER OR OFFEROR AND NOTIFY THE CONTRACTING OFFICER, THE PROTESTANT, AND THE PROTESTED BIDDER OR OFFEROR OF ITS DECISION. HOWEVER, OF PARTICULAR SIGNIFICANCE IN THIS CASE IS SUBPARAGRAPH 2 (E) OF THE SAME SECTION WHICH PROVIDES THAT PROCUREMENT ACTION SHALL BE SUSPENDED PENDING SBA'S DETERMINATION OR EXPIRATION OF THE 10-DAY PERIOD, WHICHEVER IS EARLIER, UNLESS UNUSUAL CONDITIONS MAKE IT NECESSARY THAT AN AWARD BE MADE; ALSO, THAT IN CASES WHERE FURTHER DELAY WOULD BE DISADVANTAGEOUS TO THE GOVERNMENT, IT SHALL BE PRESUMED THAT THE QUESTIONED BIDDER OR OFFEROR IS A SMALL BUSINESS CONCERN.

IT WAS ADMINISTRATIVELY DETERMINED THAT UNUSUAL CONDITIONS WERE PRESENT AT THE TIME OF THE AWARD--- THE NEED OF THE HEALTH, EDUCATION, AND WELFARE THAT DELIVERIES BE COMPLETED BY AUGUST 10, 1962--- AND THE FACT THAT FURTHER DELAY WOULD HAVE BEEN DISADVANTAGEOUS TO THE GOVERNMENT. UNDER THE FACTS REPORTED WE FIND NO BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE, AND, ACCORDINGLY, YOUR PROTEST IS AGAIN DENIED. ALSO, WE THINK IT PROPER TO POINT OUT THAT INFORMATION INFORMALLY RECEIVED FROM THE GENERAL SERVICES ADMINISTRATION IS TO THE EFFECT THAT DELIVERIES UNDER THE CONTRACT HAVE BEEN COMPLETED.