B-146385, SEP. 19, 1961

B-146385: Sep 19, 1961

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THE INVITATION WAS ISSUED BY THE CORPS OF ENGINEERS ON MAY 26. THE INVITATION RESTRICTED THE BIDDING TO SMALL BUSINESS CONCERNS AND IN THE ATTACHED "NOTICE OF SMALL BUSINESS SET-ASIDE" A SMALL BUSINESS CONCERN WAS DEFINED AS "A CONCERN THAT (I) IS CERTIFIED AS A SMALL BUSINESS CONCERN BY THE SMALL BUSINESS ADMINISTRATION. OR (II) IS INDEPENDENTLY OWNED AND OPERATED. IS NOT DOMINANT IN ITS FIELD OF OPERATION AND. BID OPENING WAS HELD ON JUNE 19. THE BID ABSTRACT SHOWS THAT THREE BIDS WERE RECEIVED AS FOLLOWS: STANDARD ELECTRICAL PRODUCTS COMPANY. BID WAS DETERMINED TO BE NONRESPONSIVE. IN YOUR BID FORM YOU REPRESENTED THAT YOU WERE A SMALL BUSINESS CONCERN. SUCH REPRESENTATION WAS QUALIFIED BY THE ADDITION OF THE PHRASE "APPLICATION IS PENDING.'.

B-146385, SEP. 19, 1961

TO THE STANDARD ELECTRICAL PRODUCTS COMPANY:

WE REFER TO YOUR LETTER OF JULY 7, 1961, PROTESTING AGAINST THE AWARD OF THE CONTRACT MADE UNDER INVITATION FOR BIDS NO. ENG 23-065-61 232.

THE INVITATION WAS ISSUED BY THE CORPS OF ENGINEERS ON MAY 26, 1961, CALLING FOR BIDS ON A TOTAL OF 400 SEARCHLIGHT SETS (100 F.O.B. ATLANTA, GEORGIA, AND 300 F.O.B. SCHENECTADY, NEW YORK). THE INVITATION RESTRICTED THE BIDDING TO SMALL BUSINESS CONCERNS AND IN THE ATTACHED "NOTICE OF SMALL BUSINESS SET-ASIDE" A SMALL BUSINESS CONCERN WAS DEFINED AS "A CONCERN THAT (I) IS CERTIFIED AS A SMALL BUSINESS CONCERN BY THE SMALL BUSINESS ADMINISTRATION, OR (II) IS INDEPENDENTLY OWNED AND OPERATED, IS NOT DOMINANT IN ITS FIELD OF OPERATION AND, WITH ITS AFFILIATES, EMPLOYS EITHER FEWER THAN 500 EMPLOYEES, OR, IF THE CONCERN QUALIFIES AS A LABOR SURPLUS AREA CONCERN, FEWER THAN 625 EMPLOYEES.'

BID OPENING WAS HELD ON JUNE 19, 1961, AND THE BID ABSTRACT SHOWS THAT THREE BIDS WERE RECEIVED AS FOLLOWS:

STANDARD ELECTRICAL PRODUCTS COMPANY, DAYTON, OHIO 17,000

CARPENTER MFG. CO., SOMERVILLE, MASS. 17,161 THE PORTABLE LIGHT CO., BID WAS DETERMINED TO BE NONRESPONSIVE. IN YOUR BID FORM YOU REPRESENTED THAT YOU WERE A SMALL BUSINESS CONCERN, BUT SUCH REPRESENTATION WAS QUALIFIED BY THE ADDITION OF THE PHRASE "APPLICATION IS PENDING.'

IT IS REPORTED THAT AT THE BID OPENING THE CARPENTER MANUFACTURING COMPANY ORALLY CHALLENGED YOUR QUALIFICATION AS A SMALL BUSINESS CONCERN. BY LETTER OF JUNE 20, 1961, THE CONTRACTING OFFICER REQUESTED THE LOCAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION AT ST. LOUIS, MISSOURI, TO ASSIST IN ESTABLISHING WHETHER YOU WERE A SMALL BUSINESS CONCERN. IN A LETTER DATED JUNE 29, 1961, THE CONTRACTING OFFICER WAS ADVISED BY THE BRANCH MANAGER OF THE ST. LOUIS SBA OFFICE THAT THE STANDARD ELECTRICAL PRODUCTS COMPANY WAS BEING DENIED A SMALL BUSINESS CERTIFICATE. AN AWARD OF A CONTRACT WAS MADE ON JUNE 30, 1961, TO THE CARPENTER MANUFACTURING COMPANY.

IN THE LETTER OF PROTEST TO THIS OFFICE, DATED JULY 7, 1961, YOU STATE THAT DAYTON, OHIO, IS PRESENTLY CLASSIFIED AS A DEPRESSED AREA AND HAS BEEN FOR SEVERAL MONTHS PAST. YOU SAY THAT SINCE YOU EMPLOY LESS THAN 625 PERSONS, UNDER THE REGULATIONS WITH RESPECT TO SIZE STANDARDS WHEREIN THE MAJOR PORTION OF THE WORK TO BE PERFORMED IS UNDERTAKEN IN A DEPRESSED AREA, YOU QUALIFY AS SMALL BUSINESS AND HAD THE RIGHT TO CERTIFY YOURSELF AS SUCH.

ASSUMING THIS TO BE SO, THE FACT REMAINS THAT YOU DID NOT IN FACT CERTIFY YOURSELF TO BE SMALL BUSINESS. THE EFFECT OF THE STATEMENTS IN YOUR BID WAS SIMPLY THAT YOU HAD APPLIED TO THE SMALL BUSINESS ADMINISTRATION TO BE CERTIFIED AS SMALL BUSINESS, AND THE REASONABLE INFERENCE TO BE DRAWN FROM THIS WAS THAT YOU WERE NOT AND COULD NOT BE CONSIDERED AS SMALL BUSINESS UNLESS YOUR APPLICATION TO SBA RECEIVED FAVORABLE CONSIDERATION.

FROM THE FACTS OF RECORD AND FROM YOUR BID IT APPEARS THAT YOU INTENDED TO MANUFACTURE THE REQUIRED ITEMS AND TO INCUR THE COSTS OF PRODUCTION AT YOUR PLANT IN DAYTON, OHIO. THE CONTRACTING OFFICER INFORMS US THAT DAYTON, OHIO, WAS REMOVED FROM THE DEPARTMENT OF LABOR'S LIST OF SUBSTANTIAL LABOR SURPLUS AREAS, EFFECTIVE AS OF JUNE 30, 1961. THE INVITATION SPECIFICALLY PROVIDED IN PARAGRAPH (B) (2) OF THE "NOTICE OF SMALL BUSINESS SET-ASIDE" THAT A "LABOR SURPLUS AREA" IS A GEOGRAPHICAL AREA WHICH AT THE TIME OF AWARD IS SO CLASSIFIED BY THE DEPARTMENT OF LABOR. UNDER THESE CIRCUMSTANCES YOU DID NOT QUALIFY AS A LABOR SURPLUS AREA CONCERN AT THE TIME OF AWARD. CONSEQUENTLY, SINCE YOU EMPLOYED MORE THAN 500 PERSONS AT THAT TIME, YOU DID NOT QUALIFY AS A SMALL BUSINESS CONCERN.

IN THE LIGHT OF THE FOREGOING, IT IS OUR OPINION THAT YOUR BID WAS PROPERLY REJECTED. ACCORDINGLY, YOUR PROTEST IS DENIED.