B-139698, JUL 13, 1959

B-139698: Jul 13, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22. WHILE THE TELEGRAM INDICATES THAT A FURTHER EXPLANATION WILL FOLLOW. THAT YOU HAVE NOTHING ADDITIONAL TO SUBMIT WITH RESPECT TO THE PROTEST. WE ARE ALSO IN RECEIPT OF A TELEGRAM OF MAY 22. IT WAS DETERMINED THAT. PROVIDED AT PAGE 21 AS FOLLOWS: "BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A DETERMINATION BY THE CONTRACTING OFFICER. THAT IT IS IN THE INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE CAPACITY OR IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS.'.

B-139698, JUL 13, 1959

TO THE GILLSAM MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22, 1959, PROTESTING ANY AWARD PURSUANT TO INVITATION FOR BIDS NO. QM/CTM/-36-243 59-677, ISSUED APRIL 9, 1959, AND MODIFIED BY ADDENDUM NO. 1 DATED APRIL 20, 1959, PENDING CLARIFICATION OF YOUR STATUS. WHILE THE TELEGRAM INDICATES THAT A FURTHER EXPLANATION WILL FOLLOW, WE ASSUME, SINCE SUCH EXPLANATION HAS NOT BEEN RECEIVED IN THE INTERVENING PERIOD, THAT YOU HAVE NOTHING ADDITIONAL TO SUBMIT WITH RESPECT TO THE PROTEST.

WE ARE ALSO IN RECEIPT OF A TELEGRAM OF MAY 22, 1959, PROTESTING THE SAME AWARD, BEARING THE NAME OF MR. ROSENFELD AS REPRESENTATIVE OF THE BONHAM MANUFACTURING COMPANY. THE FOLLOWING APPLIES EQUALLY TO BOTH PROTESTS.

UPON OPENING THE BIDS ON APRIL 27, 1959, IT WAS DETERMINED THAT, SOLELY ON THE BASIS OF BID PRICE, BOTH GILLSAM AND BONHAM WOULD BE ELIGIBLE FOR AWARD OF SOME PORTION OF THE PROCUREMENT. THE INVITATION, HOWEVER, PROVIDED AT PAGE 21 AS FOLLOWS:

"BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A DETERMINATION BY THE CONTRACTING OFFICER, ALONE OR IN CONJUNCTION WITH A REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION, THAT IT IS IN THE INTEREST OF MAINTAINING OR MOBILIZING THE NATION'S FULL PRODUCTIVE CAPACITY OR IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS.'

SMALL BUSINESS SET-ASIDES OF THIS TYPE ARE AUTHORIZED BY SECTION 15 OF THE SMALL BUSINESS ACT, 72 STAT. 395.

BY LETTER OF MAY 1, 1959, THE SMALL BUSINESS STATUS OF GILLSAM AND BONHAM WAS CHALLENGED BY ONE OF THE OTHER BIDDERS. IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN SECTION 1-703 OF THE ARMED SERVICE PROCUREMENT REGULATION, THE CONTRACTING OFFICER, ON MAY 4, 1959, REQUESTED A SIZE DETERMINATION FROM THE SMALL BUSINESS ADMINISTRATION. BY MEMORANDA OF MAY 20, 1959, FROM THE SMALL BUSINESS ADMINISTRATION REPRESENTATIVE, THE PROCURING AGENCY WAS ADVISED OF THE SMALL BUSINESS ADMINISTRATION DETERMINATION THAT NEITHER GILLSAM NOR BONHAM QUALIFIED AS A SMALL BUSINESS UNDER THAT PROCUREMENT. SUCH DETERMINATION IS CONCLUSIVE ON THE PROCUREMENT AGENCIES OF THE GOVERNMENT UNDER SECTION 8 (B) (6) OF THE SMALL BUSINESS ACT, 72 STAT. 390. IN VIEW THEREOF, IT IS CLEAR THAT NEITHER FIRM IS ELIGIBLE FOR AWARD UNDER THE TERMS OF THE INVITATION AND WE MUST CONCLUDE THAT THE BIDS OF GILLSAM AND BONHAM WERE PROPERLY REJECTED.