B-142100, MAR. 25, 1960

B-142100: Mar 25, 1960

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WHICH WERE RESTRICTED TO SMALL BUSINESS CONCERNS (DEFINED AS EMPLOYING FEWER THAN 500 EMPLOYEES OR CERTIFIED AS SUCH BY THE SMALL BUSINESS ADMINISTRATION). WERE SMALL BUSINESS CONCERNS FOR PURPOSES OF GOVERNMENT PROCUREMENT. THE DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION THAT THE CONCERN IS SMALL BUSINESS IS CONCLUSIVE. 15 U.S.C. 637 (B) (6).

B-142100, MAR. 25, 1960

TO ATLAS CLEANING SERVICE, INC. AND MILLING WORKER, INC:

IN LETTER OF FEBRUARY 23, 1960, YOUR ATTORNEY PROTESTED AGAINST THE AWARD OF ANY CONTRACT TO MIDDLESEX BUILDING MAINTENANCE CO. UNDER INVITATIONS GS -03B-7672 AND GS-03B-7673, WHICH WERE RESTRICTED TO SMALL BUSINESS CONCERNS (DEFINED AS EMPLOYING FEWER THAN 500 EMPLOYEES OR CERTIFIED AS SUCH BY THE SMALL BUSINESS ADMINISTRATION), INASMUCH AS INFORMATION AVAILABLE TO YOU INDICATES THAT THE COMPANY EMPLOYS MORE THAN 500 EMPLOYEES AND HAS NEVER BEEN CERTIFIED AS A SMALL BUSINESS CONCERN BY THE SMALL BUSINESS ADMINISTRATION.

HOWEVER, OUR INVESTIGATION OF THE MATTER HAS DISCLOSED THAT THE CONTRACTING OFFICER MADE THE AWARD TO THE LOW BIDDER ON THE BASIS OF A DETERMINATION ON JANUARY 15, 1960, BY THE SMALL BUSINESS ADMINISTRATION THAT THE SUCCESSFUL BIDDER AND ITS AFFILIATE, HAVING EMPLOYED TOGETHER AN AVERAGE OF 465 EMPLOYEES IN 1959, WERE SMALL BUSINESS CONCERNS FOR PURPOSES OF GOVERNMENT PROCUREMENT. IN THIS CONNECTION, THE DEFINITION OF "NUMBER OF EMPLOYEES," CONTAINED IN TITLE 13 OF THE CODE OF FEDERAL REGULATIONS, INCORPORATED BY REFERENCE IN THE "BIDDER'S STATEMENT REGARDING NUMBER OF EMPLOYEES AND CONTINGENT FEES" ATTACHED TO THE INVITATION, PERMITS CONSIDERATION OF THE "AVERAGE" EMPLOYMENT OF ANY CONCERN AND ITS AFFILIATES FOR THE IMMEDIATELY PRECEDING FOUR CALENDAR QUARTERS. FURTHER, THE DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION THAT THE CONCERN IS SMALL BUSINESS IS CONCLUSIVE. 15 U.S.C. 637 (B) (6). THE CONTRACTING OFFICER, THEREFORE, HAD NO ALTERNATIVE OTHER THAN TO RELY UPON THAT DETERMINATION.