B-134265, DEC. 11, 1957

B-134265: Dec 11, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 31. THE INVITATION WAS RESTRICTED TO BIDS FROM SMALL BUSINESS CONCERNS. THE BASIS OF YOUR PROTEST IS THAT TWO OF THE LOW BIDDERS TO WHOM AWARDS WERE PROPOSED TO BE MADE SHOULD NOT BE CONSIDERED AS SMALL BUSINESS CONCERNS AND. THE DETERMINATION OF THE QUESTION AS TO WHETHER A CONCERN IS SMALL BUSINESS RESTS WITH THE SMALL BUSINESS ADMINISTRATION AND ITS DETERMINATIONS IN THIS REGARD ARE CONCLUSIVE. THE REPORT FURNISHED IN THE MATTER BY THE DEPARTMENT OF THE ARMY SHOWS THAT THE SMALL BUSINESS ADMINISTRATION DETERMINED THAT THE TWO CONCERNS INVOLVED WERE SMALL BUSINESS CONCERNS. THE AWARD OF THE CONTRACTS WERE MADE ON NOVEMBER 15. SINCE THE TWO CONCERNS WERE THE LOW BIDDERS AND HAD BEEN DETERMINED BY THE SMALL BUSINESS ADMINISTRATION TO BE SMALL BUSINESS CONCERNS.

B-134265, DEC. 11, 1957

TO ABE L. GREENBERG CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 31, 1957, PROTESTING THE PROPOSED AWARDS UNDER INVITATION FOR BIDS NO. QM (CTM/ 36- 243-58-63, ISSUED BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, FOR THE PROCUREMENT OF ENLISTED MEN'S WHITE TROUSERS. THE INVITATION WAS RESTRICTED TO BIDS FROM SMALL BUSINESS CONCERNS.

THE BASIS OF YOUR PROTEST IS THAT TWO OF THE LOW BIDDERS TO WHOM AWARDS WERE PROPOSED TO BE MADE SHOULD NOT BE CONSIDERED AS SMALL BUSINESS CONCERNS AND, THEREFORE, SHOULD BE DECLARED INELIGIBLE TO RECEIVE AN AWARD OF THE CONTRACT.

THE DETERMINATION OF THE QUESTION AS TO WHETHER A CONCERN IS SMALL BUSINESS RESTS WITH THE SMALL BUSINESS ADMINISTRATION AND ITS DETERMINATIONS IN THIS REGARD ARE CONCLUSIVE. SEE 15 U.S.C. 642 (B). THE REPORT FURNISHED IN THE MATTER BY THE DEPARTMENT OF THE ARMY SHOWS THAT THE SMALL BUSINESS ADMINISTRATION DETERMINED THAT THE TWO CONCERNS INVOLVED WERE SMALL BUSINESS CONCERNS. THE AWARD OF THE CONTRACTS WERE MADE ON NOVEMBER 15, 1957.

IN THE CIRCUMSTANCES, AND SINCE THE TWO CONCERNS WERE THE LOW BIDDERS AND HAD BEEN DETERMINED BY THE SMALL BUSINESS ADMINISTRATION TO BE SMALL BUSINESS CONCERNS, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO MAKE THE AWARD TO THE LOW RESPONSIVE BIDDERS. THERE IS, THEREFORE, NO LEGAL BASIS ON WHICH WE COULD QUESTION THE ACTION TAKEN.