B-201856, APR 17, 1981

B-201856, APR 17, 1981

DIGEST: UNDER 15 U.S.C. SEC. 637(B)(6) (1976) SMALL BUSINESS ADMINISTRATION IS EMPOWERED TO CONCLUSIVELY DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT PURPOSES. CONSEQUENTLY, PROTEST CONCERNING CONTRACTOR'S COMPLIANCE WITH PERTINENT DEFINITION OF SMALL BUSINESS IN SOLICITATION IS NOT SUBJECT TO GAO REVIEW.

WATERFRONT ROPE & CANVAS CORP.:

THE WATERFRONT ROPE & CANVAS CORP. PROTESTS THE AWARD OF SMALL BUSINESS SET-ASIDE CONTRACT NO. N00383-80-C-3995 BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY, FOR LANYARDS. THE PROTESTER CONTENDS THAT THE AWARDEE, KINGS POINT MANUFACTURING COMPANY, INC. (KINGS POINT), DID NOT MEET THE PERTINENT SMALL BUSINESS DEFINITION OF THE SOLICITATION WHICH PROVIDED:

"A 'SMALL BUSINESS CONCERN' IS A CONCERN, INCLUDING ITS AFFILIATES, WHICH IS INDEPENDENTLY OWNED AND OPERATED, IS NOT DOMINANT IN THE FIELD OF OPERATION IN WHICH IT IS OFFERING ON GOVERNMENT CONTRACTS, AND CAN FURTHER QUALIFY UNDER THE CRITERIA SET FORTH IN REGULATIONS OF THE SMALL BUSINESS ADMINISTRATION (CODE OF FEDERAL REGULATIONS, TITLE 13, SECTION 121.3-8). IN ADDITION TO MEETING THESE CRITERIA, A MANUFACTURER OR A REGULAR DEALER SUBMITTING OFFERS IN HIS OWN NAME MUST AGREE TO FURNISH IN THE PERFORMANCE OF THE CONTRACT END ITEMS MANUFACTURED OR PRODUCED BY SMALL BUSINESS CONCERNS. ***"

SPECIFICALLY, THE PROTESTER ALLEGES THAT KINGS POINT PLANS TO BUY ROPE, A COMPONENT OF THE LANYARDS, FROM GLADDING CORPORATION, A LARGE BUSINESS, AND THAT THIS PURCHASE PLAN SHOWS THAT THE AWARDEE IS NOT IN COMPLIANCE WITH THE SMALL BUSINESS DEFINITION WHICH REQUIRES THE CONTRACT END ITEM BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS.

THE CONTRACTING OFFICER STATES THAT THE PROTESTER'S ALLEGATION TO THE NAVY CONSTITUTED A PROTEST OF THE CONTRACTOR'S SMALL BUSINESS SIZE STATUS AND THAT, THEREFORE, THE PROTEST WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR ITS DECISION IN ACCORDANCE WITH APPLICABLE REGULATION. SEE AMMARK CORPORATION, B-192052, DECEMBER 21, 1978, 78-2 CPD 428, WHERE, IN RESPONSE TO A SIMILAR PROTEST, WE HELD THAT REFERRAL TO SBA WOULD HAVE BEEN APPROPRIATE.

BY DECISION DATED FEBRUARY 18, 1981, SBA SPECIFICALLY FOUND THAT KINGS POINT WAS A "SMALL BUSINESS CONCERN FOR FUTURE GOVERNMENT PROCUREMENTS UTILIZING A 500 EMPLOYEE SIZE STANDARD (THE SAME SIZE STANDARD APPLICABLE TO THE SUBJECT CONTRACT)" AND THAT "KINGS POINT IS THE MANUFACTURER OF THE LANYARD IN ACCORDANCE WITH THE DEFINITION OF MANUFACTURER, SBA RULES AND REGULATIONS."

UNDER 15 U.S.C. SEC. 637(B)(6) (1976), THE SBA IS EMPOWERED TO CONCLUSIVELY DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT PURPOSES. A&R WINDOW CLEANING & JANITORIAL SERVICE INC., B-197612, MARCH 28, 1980, 80-1 CPD 231. CONSEQUENTLY, WE MAY NOT REVIEW THE SBA'S DECISION THAT KINGS POINT COMPLIES WITH THE PERTINENT SMALL BUSINESS DEFINITION.

THE PROTESTER HAS ALSO RAISED OTHER ISSUES QUESTIONING THE AWARD WHICH IT "EXPECTS" WE WILL NOT REVIEW FOR JURISDICTIONAL OR OTHER REASONS. WE HAVE REVIEWED THESE ISSUES AND AGREE THAT THEY ARE NOT FOR OUR CONSIDERATION. THE ISSUES ARE EITHER UNTIMELY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), OR INVOLVE CONTRACT ADMINISTRATION WHICH IS NOT FOR CONSIDERATION UNDER OUR PROCEDURES. COMPAC-CUTTING MACHINE CORP., B-195865, JANUARY 21, 1980, 80-1 CPD 60.

ACCORDINGLY, THE PROTEST IS DISMISSED.