B-145236, MARCH 29, 1961, 40 COMP. GEN. 550

B-145236, MARCH 29, 1961, 40 COMP. GEN. 550

CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - EVIDENCE A LOW BIDDER WHO WAS NOT ABLE TO SELF-CERTIFY HIMSELF AS A SMALL BUSINESS CONCERN BECAUSE OF SIZE AT THE TIME OF SUBMISSION OF A BID FOR A TOTAL SET -ASIDE PROCUREMENT BUT WHO, PRIOR TO AWARD, AS A RESULT OF A CHANGE IN THE DEFINITION OF SMALL BUSINESS, BECAME A SMALL BUSINESS HAS SUBMITTED A BID WHICH IS NONRESPONSIVE ON ITS FACE, AND TO PERMIT AN AWARD TO SUCH A BIDDER ON THE BASIS OF A SUBSEQUENT EVENT CURING THE DEFICIENCY WOULD BE DETRIMENTAL TO THE EFFECTIVENESS OF THE SMALL BUSINESS SET-ASIDE PROCEDURE AND POSSIBLY PREJUDICIAL TO THE INTERESTS OF OTHER LARGE CONCERNS WHO DID NOT SUBMIT BIDS BUT COULD HAVE QUALIFIED UNDER THE CHANGED DEFINITION. A BIDDER WHO, IN RESPONSE TO A TOTAL SMALL BUSINESS SET-ASIDE PROCUREMENT, CERTIFIES HIMSELF AS A SMALL BUSINESS CONCERN AT THE TIME OF SUBMISSION OF HIS BID AND WHO LATER IS DETERMINED TO HAVE BEEN, IN FACT, A SMALL BUSINESS CONCERN MAY HAVE HIS BID CONSIDERED RESPONSIVE; HOWEVER, A BIDDER WHO WAS NOT ABLE TO SELF-CERTIFY HIMSELF AS A SMALL BUSINESS CONCERN AT THE TIME OF BID SUBMISSION AND WHO, PRIOR TO AWARD, AS A RESULT OF A SUBSEQUENT EVENT, BECAME A SMALL BUSINESS CONCERN MAY NOT HAVE HIS BID CONSIDERED RESPONSIVE.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, MARCH 29, 1961:

WE HAVE A LETTER FROM MR. BERNARD L. BOUTIN, DEPUTY ADMINISTRATOR, DATED MARCH 3, 1961, SUBMITTING FOR OUR REVIEW AND CONSIDERATION A QUESTION ON THE PROPRIETY OF AWARDS TO BE MADE IN CONNECTION WITH INVITATION FOR BIDS NO. FN-1S-26334-A-1-18-61, DATED DECEMBER 9, 1960, AND ISSUED BY THE FEDERAL SUPPLY SERVICE OF YOUR AGENCY.

THE INVITATION WAS ISSUED FOR THE PURPOSE OF ESTABLISHING A TERM CONTRACT ON ALUMINUM AND STEEL OFFICE FURNITURE FOR USE BY THE GENERAL SERVICES ADMINISTRATION IN MEETING ITS NEEDS FOR THESE ITEMS DURING THE PERIOD APRIL 1, 1961, THROUGH MARCH 31, 1962. THE INVITATION CONTAINS A 100 PERCENT SMALL-BUSINESS SET-ASIDE PROVISION ON ITEM 8 (CHAIR, STEEL, SPECIAL PURPOSE), ITEM 9 (CHAIR, STEEL, SPECIAL PURPOSE), ITEM 10 (CHAIR, SWIVEL, STEEL), ITEM 11 (STOOL, STEEL), AND ITEM 12 (STOOL, STEEL). PRICES WERE REQUESTED ON A DELIVERED BASIS TO EACH OF GSA'S 10 SUPPLY DEPOTS LOCATED THROUGHOUT THE UNITED STATES.

IN HIS LETTER OF MARCH 3, 1961, THE DEPUTY ADMINISTRATOR REPORTS THAT AFTER THE INVITATION FOR BIDS WERE ISSUED, THE CHROMCRAFT CORPORATION, ST. LOUIS, MISSOURI, ENTERED A PROTEST WITH BOTH THE GENERAL SERVICES ADMINISTRATION AND THE SMALL BUSINESS ADMINISTRATION CHALLENGING THE SET- ASIDE PROVISION IN THE INVITATION. THE CHROMCRAFT CORPORATION LATER REQUESTED THAT THE BID OPENING DATE BE EXTENDED BEYOND THE ORIGINAL DATE OF JANUARY 18, 1961, TO ALLOW TIME FOR AN APPEAL TO BE MADE TO THE SMALL BUSINESS ADMINISTRATION WITH REGARD TO ITS CLASSIFICATION AS "LARGE BUSINESS.' IT IS STATED THAT IN ACCORDANCE WITH USUAL PRACTICE, SINCE THE REQUEST WAS REASONABLE AND A SHORT EXTENSION WOULD NOT IN THIS CASE RETARD ACCOMPLISHMENT OF TIMELY PROCUREMENT, THE BID OPENING DATE WAS EXTENDED TO JANUARY 26, 1961.

SPECIAL PROVISION NO. 21 OF THE INVITATION FOR BIDS ENTITLED,"1NOTICE OF SMALL BUSINESS SET-ASIDE," APPLICABLE TO ITEMS 8, 9, 10, 11, AND 12 PROVIDES, IN ACCORDANCE WITH SECTION 1-1.707 (D) (3) OF THE FEDERAL PROCUREMENT REGULATIONS, THAT:

BIDS OR PROPOSALS UNDER THESE ITEMS ARE SOLICITED FROM SMALL BUSINESS CONCERNS ONLY AND THESE ITEMS ARE TO BE AWARDED TO ONE OR MORE SMALL BUSINESS CONCERNS. THIS ACTION IS BASED ON A DETERMINATION BY THE CONTRACTING OFFICER AND THE SMALL BUSINESS ADMINISTRATION UNDER THE AUTHORITY OF SECTION 15 OF THE SMALL BUSINESS ACT. A SMALL BUSINESS CONCERN IS ANY FIRM WHICH MEETS THE CRITERIA ESTABLISHED BY TITLE 13, CHAPTER 1, PART 121, OF THE CODE OF FEDERAL REGULATIONS, BID OR PROPOSALS RECEIVED FROM FIRMS WHICH ARE NOT SMALL BUSINESS CONCERNS WILL BE CONSIDERED NONRESPONSIVE.

BIDS WERE OPENED ON JANUARY 26, 1961, AND IT WAS FOUND ON PAGE ONE OF THE INVITATION THAT THE CHROMCRAFT CORPORATION, BY PLACING AN "X" IN THE BOX PROVIDED THEREFOR, REPRESENTED THAT IT WAS NOT A SMALL-BUSINESS CONCERN. WITH REGARD TO THE BIDS SUBMITTED AND THE SUBSEQUENT EVENTS WHICH ENABLED CHROMCRAFT TO QUALIFY AS A SMALL-BUSINESS CONCERN, THE DEPUTY ADMINISTRATOR'S LETTER STATES THAT:

THE CHROMCRAFT BID IS LOW ON REQUIREMENTS HAVING AN APPROXIMATE VALUE OF $380,671.50. IF THE CHROMCRAFT BID WERE DISREGARDED, AWARDS TOTALING $395,165.30 WOULD BE MADE TO THE PRECISION METAL WORKERS, CHICAGO, ILLINOIS; GENERAL IRON CORPORATION, BROOKLYN, NEW YORK; CRAMER POSTURE CHAIR ., KANSAS CITY, MISSOURI; AND TOLEDO METAL FURNITURE CO., TOLEDO, OHIO. THE TOTAL DOLLAR DIFFERENCE INVOLVED AMOUNTS TO APPROXIMATELY $14,493.80, WHICH IS A PERCENTAGE DIFFERENCE OF 3.66 PERCENT.

AT THE TIME BIDS WERE OPENED, NONE OF THE RESPONDING BIDDERS WAS LOCATED IN AN AREA OF SUBSTANTIAL UNEMPLOYMENT AS DESIGNATED BY THE DEPARTMENT OF LABOR. HOWEVER, ON FEBRUARY 9, THE DEPARTMENT OF LABOR ADDED 25 MAJOR INDUSTRIAL CENTERS OT ITS LIST OF SUBSTANTIAL UNEMPLOYMENT AREAS. THE ST. LOUIS AREA, IN WHICH CHROMCRAFT IS LOCATED, IS NOW SO DESIGNATED, AS WELL AS KANSAS CITY, WHERE THE CRAMER POSTURE CHAIR CO. IS LOCATED, AND TOLEDO, OHIO, THE LOCATION OF THE TOLEDO METAL FURNITURE CO.

ON FEBRUARY 18, SBA PUBLISHED AN AMENDMENT TO ITS SMALL BUSINESS "SIZE STANDARDS" TO PROVIDE THAT IN DETERMINING THE SMALL BUSINESS STATUS OF A CONCERN, THE SIZE STANDARDS SHOULD BE INCREASED BY 25 PERCENT WHENEVER THE CONCERN QUALIFIED AS A SUBSTANTIAL SURPLUS LABOR AREA CONCERN. THE AMENDMENT ALSO PROVIDES THAT DETERMINATION OF WHAT AREAS ARE "AREAS OF SUBSTANTIAL LABOR SURPLUS" FOR PROCUREMENT PURPOSES SHOULD BE MADE AS OF THE TIME THE CONTRACT IS AWARDED.

ON FEBRUARY 20, A TELEGRAM WAS RECEIVED BY GSA FROM CHROMCRAFT ADVISING THAT SBA HAD RULED, AS OF THAT DATE, THAT THE FIRM WAS "SMALL BUSINESS.'

NOTWITHSTANDING THE QUALIFICATION OF CHROMCRAFT AS A SMALL BUSINESS CONCERN BEFORE AWARD (SEE B-14365, (SIC, B-143630) OCTOBER 13, 1960), A SERIOUS QUESTION ARISES WITH RESPECT TO THE PROPRIETY OF MAKING AN AWARD TO THIS FIRM BECAUSE WHEN BIDS WERE OPENED THE FIRM WAS NOT SMALL BUSINESS AND THE INVITATION IS RESTRICTED TO BIDS ONLY FROM SMALL BUSINESS CONCERNS. INDEED, CHROMCRAFT IN ITS BID CERTIFIED THAT IT WAS NOT A SMALL BUSINESS CONCERN.

AN IMPROPERLY SUBMITTED BID MAY NOT BE MADE THE BASIS FOR AWARD. OTHER LARGE BUSINESS CONCERNS WHICH HONORED THE RESTRICTION OF THE INVITATION LIMITING BIDS TO SMALL BUSINESS CONCERNS DID NOT SUBMIT BIDS. IT WOULD BE UNFAIR TO THEM AND TO THE ORDERLINESS OF THE COMPETITIVE BID PROCESS TO PERMIT AN AWARD WHERE A VIOLATION OF AN EXPLICIT PROVISION OF THE INVITATION IS INVOLVED.

THE PROPERTY OF AWARDING A CONTRACT TO A LOW BIDDER WHOSE STATUS AS A SMALL BUSINESS AT THE TIME OF BID OPENING IS IN DOUBT BUT WHO, PRIOR TO AWARD, QUALIFIES AS A SMALL BUSINESS WAS CONSIDERED BY OUR OFFICE IN B- 143630, OCTOBER 13, 1960. IN THAT DECISION TWO INVITATIONS FOR BIDS WERE INVOLVED. AS IN THE PRESENT CASE, THE PROCUREMENTS WERE RESTRICTED TO SMALL-BUSINESS CONCERNS WITH THE INVITATIONS PROVIDING THAT BIDS OR PROPOSALS RECEIVED FROM FIRMS NOT CLASSIFIED AS SMALL BUSINESS WOULD BE CONSIDERED AS NONRESPONSIVE. THE PLASTIC WIRE AND CABLE CORPORATION, THE LOW BIDDER UNDER BOTH OF THE INVITATIONS INVOLVED IN THAT CASE REPRESENTED THAT IT WAS A SMALL BUSINESS. BID OPENING DATES WERE MAY 17 AND MAY 18, 1960. ON MAY 20, 1960, FOLLOWING OPENING OF THE BIDS, ANOTHER BIDDER PROTESTED THE STATUS OF THE PLASTIC WIRE AND CABLE CORPORATION AS A SMALL- BUSINESS CONCERN. ON MAY 25, 1960, AN SBA REGIONAL OFFICE NOTIFIED THE PROCURING AGENCY THAT THE LOW BIDDER DID NOT QUALIFY AS A SMALL BUSINESS AND WAS THUS NOT ELIGIBLE FOR AWARD. IN THE MEANTIME, HOWEVER, PLASTIC WIRE ON MAY 23, 1960, HAD APPLIED TO THE SMALL BUSINESS ADMINISTRATION FOR A SMALL-BUSINESS CERTIFICATE AND ON MAY 31, 1960, PURSUANT TO SUCH APPLICATION PLASTIC WIRE WAS CERTIFIED AS A SMALL-BUSINESS CONCERN EFFECTIVE AS OF THAT DATE. AWARD OF CONTRACTS ON BOTH INVITATIONS WAS MADE TO THAT CONCERN ON JUNE 27, 1960. WE HELD THAT THE AWARDS WERE PROPERLY MADE SINCE GENERALLY THE FINAL DETERMINATION OF THE ELIGIBILITY OF A BIDDER AS A SMALL-BUSINESS CONCERN UNDER A SMALL-BUSINESS RESTRICTED INVITATION IS MADE AS OF THE DATE OF AWARD.

WE FEEL THAT THE RULE SET FORTH IN OUR DECISION OF OCTOBER 13, 1960, IS PROPERLY APPLICABLE TO THE FACTUAL SITUATION PRESENT IN THAT DECISION; THAT IS, WHERE A BIDDER REPRESENTS IN GOOD FAITH THAT HE IS SMALL BUSINESS HE IS ENTITLED TO HAVE HIS BID CONSIDERED FOR AWARD SUBJECT TO TO A CHALLENGE OF HIS SIZE STATUS BY ANOTHER BIDDER OR THE CONTRACTING OFFICER (SEE 13 CFR 121.3-8 (D); 13 CFR 121.3-5 BELOW). IF, AFTER BID OPENING, THE LOW BIDDER WHO HAS REPRESENTED HIMSELF, OR HIS CONCERN, AS A SMALL BUSINESS IS CHALLENGED ON THAT POINT AND IT IS LATER DETERMINED THAT HE IS, IN FACT, SMALL BUSINESS SUCH LOW BIDDER WOULD BE ELIGIBLE FOR AWARD--- THE DATE OF AWARD WOULD BE THE CONTROLLING POINT IN TIME BY WHICH HIS ELIGIBILITY FOR AWARD IS TO BE DETERMINED. HOWEVER, BECAUSE OF THE CONSIDERATIONS TO BE DISCUSSED BELOW, WE FEEL THAT THE HOLDING IN OUR DECISION OF OCTOBER 13, 1960, IS NOT APPLICABLE TO A SITUATION, SUCH AS WE HAVE HERE, WHERE A BIDDER DOES NOT, AND CANNOT, IN GOOD FAITH REPRESENT HIMSELF AS SMALL BUSINESS PRIOR TO, OR AT THE TIME OF, BID OPENING.

SMALL BUSINESS ADMINISTRATION REGULATIONS DEALING WITH JOINT SET ASIDES PROMULGATED PURSUANT TO THE AUTHORITY CONFERRED UPON THE ADMINISTRATOR BY SECTION 5 OF THE SMALL BUSINESS ACT, 72 STAT. 385, 15 U.S.C. 634, ARE CONTAINED IN TITLE 13, CHAPTER 1, PART 127, OF THE CODE OF FEDERAL REGULATIONS. SECTION 217.15-2 (A) (3) OF THOSE REGULATIONS PROVIDES, IN PART, THAT IN A 100 PERCENT SET-ASIDE,"THE ENTIRE PROCUREMENT IS RESTRICTED TO SMALL-BUSINESS CONCERNS AND BIDS OR QUOTATIONS BY LARGE FIRMS WILL BE REJECTED AS NONRESPONSIVE.' SECTIONS 121.3-4 AND 121.3-8 (C) AS AMENDED BY 26 F.R. 812, MAKE PROVISION FOR APPLICATION BY BIDDERS FOR SIZE DETERMINATIONS AND SMALL BUSINESS CERTIFICATES. WITH REGARD TO SELF-CERTIFICATION PARAGRAPH (D) OF SECTION 121.3-8 (26 F.R. 812, 815) PROVIDES THAT:

IN THE SUBMISSION OF A BID OR PROPOSAL ON A GOVERNMENT PROCUREMENT, A CONCERN WHICH MEETS THE CRITERIA OF PARAGRAPH (A) OR (B) OF THIS SECTION MAY REPRESENT THAT IT IS A SMALL BUSINESS. IN THE ABSENCE OF A WRITTEN PROTEST, SUCH CONCERN SHALL BE DEEMED TO BE A SMALL BUSINESS FOR THE PURPOSE OF THE SPECIFIC GOVERNMENT PROCUREMENT INVOLVED.

ALSO, SEE 13 CFR 121.3-5 AS AMENDED BY 26 F.R. 812, 814, WHICH PROVIDES FOR PROTESTS BY BIDDERS OR THE CONTRACTING OFFICER PRIOR TO AWARD AS TO THE SMALL-BUSINESS STATUS OF A BIDDER AND DETERMINATION OF SUCH PROTESTS BY SBA REGIONAL DIRECTOR. APPEALS FROM SUCH DETERMINATIONS ARE PROVIDED FOR IN 13 CFR 121.3-6 AS AMENDED BY 26 F.R. 812.

DURING 1956, WHEN THE SMALL BUSINESS ADMINISTRATION PROPOSED TO ISSUE SIZE STANDARDS REGULATIONS, MR. WENDELL B. BARNES, WHO WAS THEN THE ADMINISTRATOR OF THE SMALL BUSINESS ADMINISTRATION, TESTIFIED THAT HE WAS HOPEFUL THAT 95 TO 99 PERCENT OF THE SIZE STATUTE DETERMINATION CASES WOULD BE HANDLED UNDER THE SELF-CERTIFICATION PROCEDURE AND THAT ONLY IN THE CLOSE CASES, WHERE THERE WAS ACTUAL DOUBT ON SIZE STATUS, WOULD THERE BE REQUESTS FOR A CERTIFICATE BASED ON MORE DETAILED INFORMATION. HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE SELECT COMMITTEE ON SMALL BUSINESS, HOUSE OF REPRESENTATIVES, EIGHTY-FOURTH CONGRESS, SECOND SESSION, JULY 5, 1956, P. 25. A GREAT DEAL OF CONCERN WAS ALSO EXPRESSED BY THE SUBCOMMITTEE MEMBERS WITH REGARD TO WHETHER A BIDDER WOULD BE REQUIRED, IN EACH INSTANCE, TO CERTIFY HIS SIZE STATUS AT THE TIME OF BID SUBMISSION. THE SUBCOMMITTEE WAS ASSURED THAT SELF CERTIFICATION AS TO SIZE STATUS WOULD BE REQUIRED, IN EACH INSTANCE, BY THE BID FORMS TO BE SUBMITTED BY THE BIDDER. SEE PAGES 25-27 OF THE HEARING, CITED ABOVE.

THE CONCERN OF THE SUBCOMMITTEE MEMBERS WITH REGARD TO REQUIRING BIDDERS TO CERTIFY THEIR SIZE STATUS AT THE TIME OF BID SUBMISSION IS SIGNIFICANT. THE SELF-CERTIFICATION PROCEDURE WAS DESIGNED TO SIMPLY AND EXPEDITE SIZE DETERMINATIONS AND PROCUREMENT PROCESSES. IT WAS HOPED THAT 95 TO 99 PERCENT OF THE CASES WOULD BE HANDLED UNDER THAT PROCEDURE. UNLESS THE SUBMISSION OF BIDS UNDER A 100 PERCENT SMALL BUSINESS SET-ASIDE CAN BE RESTRICTED SOLELY TO THOSE WHO, IN GOOD FAITH, CAN CERTIFY IN THEIR BIDS THAT THEY ARE SMALL BUSINESS, NO USEFUL PURPOSE WOULD BE SERVED BY REQUIRING, IN EVERY INSTANCE, SELF CERTIFICATION ON SIZE STATUS. BIDDERS WHO, PRIOR TO BID OPENING, CANNOT IN GOOD FAITH CERTIFY THEMSELVES AS SMALL BUSINESS MAY BE PERMITTED TO DELAY CONTRACT AWARDS IN ORDER TO ALLOW TIME TO MAKE APPLICATION TO THE SMALL BUSINESS ADMINISTRATION FOR A SMALL BUSINESS CERTIFICATE ON THE BASIS THAT THEIR STATUS MAY HAVE CHANGED SUFFICIENTLY IN THE INTERIM--- BETWEEN BID OPENING AND AWARD--- SO AS TO QUALIFY AS SMALL BUSINESS, THE EFFECTIVENESS OF THE SMALL-BUSINESS SET- ASIDE PROCEDURE WOULD BE SERIOUSLY IMPAIRED. USUALLY A BIDDER HIMSELF IS IN A VERY GOOD POSITION TO KNOW HIS SIZE AND KNOWING THIS, IF HE CANNOT IN HONESTY REPRESENT HIMSELF AS A SMALL BUSINESS, THE INTERESTS OF ORDERLY AND TIMELY PROCUREMENT REQUIRE THAT HIS BID BE REJECTED AS NONRESPONSIVE.

A FURTHER CONSIDERATION PERTINENT TO THE PRESENT MATTER SHOULD BE MENTIONED. IT IS A REASONABLE ASSUMPTION THAT OTHER LARGE BUSINESS CONCERNS HONORED THE RESTRICTION IN THE INVITATION LIMITING BIDS TO SMALL- BUSINESS CONCERNS AND DID NOT SUBMIT BIDS. TO THE EXTENT THAT SUCH OTHER LARGE CONCERNS COULD ALSO HAVE QUALIFIED AS SMALL BUSINESSES UNDER THE AMENDMENT OF FEBRUARY 18 TO THE SMALL BUSINESS SIZE STANDARDS, AN AWARD OF A CONTRACT AT THIS LATE DATE TO A BIDDER WHO DID NOT HONOR THE RESTRICTION WOULD PREJUDICE THOSE BIDDERS. IN FAIRNESS TO THEM, AND IN THE INTEREST OF PRESERVING THE INTEGRITY OF ORDERLY SMALL-BUSINESS PROCUREMENT PROCEDURES, A RULE WHICH WOULD PERMIT AN AWARD OF A CONTRACT TO A BIDDER UNDER THE CIRCUMSTANCES OUTLINED WOULD BE INEQUITABLE.

AS INDICATED EARLIER THE DECISION OF OCTOBER 13, 1960 (B-143630), IS DISTINGUISHABLE FROM THE PRESENT CASE. THERE THE LOW BIDDER CERTIFIED HIMSELF AS A SMALL BUSINESS AND IT WAS LATER DETERMINED THAT HE WAS, IN FACT, A SMALL-BUSINESS CONCERN. HERE, DUE TO A FORTUITOUS CIRCUMSTANCE (I.E; A CHANGE IN THE DEFINITION OF SMALL BUSINESS), CHROMCRAFT SUBSEQUENTLY BECAME A SMALL BUSINESS AND RECEIVED A CERTIFICATE TO EFFECT, ALTHOUGH ADMITTEDLY IT WAS A NON-SMALL-BUSINESS AT THE TIME IT SUBMITTED ITS BID. IN VIEW OF THE CONSIDERATIONS DISCUSSED ABOVE, THE PROCUREMENT WAS PROPERLY RESTRICTED TO SMALL-BUSINESS CONCERNS AND CHROMCRAFT'S BID WAS NOT ENTITLED TO CONSIDERATION. IT WAS NONRESPONSIVE ON ITS FACE AT THE TIME BIDS WERE OPENED AND WE DO NOT BELIEVE THAT SUBSEQUENT EVENTS SHOULD BE ALLOWED TO OPERATE TO CURE THE DEFICIENCIES. HAD CHROMCRAFT, IN GOOD FAITH, BEEN ABLE TO CERTIFY ITSELF AS A SMALL BUSINESS ITS BID WOULD HAVE BEEN ENTITLED TO CONSIDERATION, SINCE UNDER 13 CFR 121.3-8 (D), UNLESS THERE IS A PROTEST, THE CONTRACTING OFFICER IS ENTITLED TO RELY ON THE SELF CERTIFICATION.

IN VIEW OF THE FOREGOING, WE MUST ADVISE THAT THE CHROMCRAFT CORPORATION'S BID SHOULD NOT BE CONSIDERED FOR AWARD.