B-149105, JUL. 13, 1962

B-149105, JUL. 13, 1962

TO NANTEX-RIVIERA CORPORATION:

BY LETTER DATED JUNE 4, 1962, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. DSA-1-62-298.

THE INVITATION DATED APRIL 17, 1962, REQUESTED BIDS ON A 100 PERCENT SMALL BUSINESS SET-ASIDE FOR CERTAIN QUANTITIES OF MEN'S SHIRTS AND TROUSERS (OPERATING, SURGICAL). ALL BIDDERS WERE ADVISED SPECIFICALLY THAT:

"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, IN THE INTEREST OF WAR OR NATIONAL DEFENSE PROGRAMS, OR IN THE INTEREST OF ASSURING THAT A FAIR PROPORTION OF GOVERNMENT PROCUREMENT IS PLACED WITH SMALL BUSINESS CONCERNS. BIDS OR PROPOSALS RECEIVED FROM FIRMS WHICH ARE NOT SMALL BUSINESS CONCERNS SHALL BE CONSIDERED NONRESPONSIVE AND SHALL BE REJECTED.

"REPRESENTATION OF SMALL BUSINESS STATUS BY BIDDER

"THE BIDDER, BY SUBMITTING THIS BID, HEREBY REPRESENTS IN GOOD FAITH THAT, IN ACCORDANCE WITH THE ABOVE DEFINITIONS, IT IS A SMALL BUSINESS CONCERN AND THAT IT WILL FURNISH IN THE PERFORMANCE OF ANY CONTRACT AWARDED HEREUNDER END ITEMS MANUFACTURED OR PRODUCED IN THE UNITED STATES, ITS POSSESSIONS OR PUERTO RICO, BY SMALL BUSINESS CONCERNS.'

BIDS WERE OPENED ON MAY 8, 1962, AND IT APPEARED THAT YOUR FIRM WAS THE LOWEST BIDDER ON THE ENTIRE PROCUREMENT. SINCE THE CONTRACTING PURSUANT TO ASPR 1-703 (B) (2) TO DETERMINE IF YOUR ORGANIZATION WAS A SMALL BUSINESS CONCERN ELIGIBLE TO RECEIVE AN AWARD UNDER THE INVITATION. MAY 29, 1962, SBA ADVISED THE PROCUREMENT AGENCY THAT YOUR FIRM WAS A LARGE BUSINESS CONCERN FOR PURPOSES OF THIS PROCUREMENT. THIS DETERMINATION WAS CONFIRMED BY SBA BY TELEGRAM DATED JUNE 12, 1962, TO THE CONTRACTING OFFICER. AT YOUR REQUEST, THE SBA SIZE DETERMINATION WAS RECONSIDERED AND BY LETTER OF JUNE 13, 1962, YOU WERE ADVISED BY SBA FOR THE REASONS THEREIN STATED THAT THE ,NANTEX-RIVIERA CORPORATION IS NOT A SMALL BUSINESS FOR THE PURPOSE OF BIDDING ON GOVERNMENT PROCUREMENT CONTRACTS.' IN ACCORDANCE WITH THE TERMS OF THE AS NONRESPONSIVE. AWARD ACCORDINGLY WAS MADE TO KINGS POINT INDUSTRIES, INC., AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

UNDER 15 U.S.C. 637 (B) (6), SBA IS AUTHORIZED TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED "SMALL-BUSINESS CONCERNS" ENTITLED TO PREFERENCE IN GOVERNMENT PROCUREMENT, AND WHEN SUCH DETERMINATION IS MADE IT IS CONCLUSIVE UPON THE PROCUREMENT AGENCY. NEITHER OUR OFFICE NOR ANY EXECUTIVE AGENCY OF THE GOVERNMENT MAY QUESTION A DETERMINATION MADE BY SBA OF THE SMALL BUSINESS SIZE OF A CONCERN VALID AWARD TO YOUR CONCERN UNDER THE INVITATION AND WAS AUTHORIZED ONLY TO MAKE AN AWARD TO THAT SMALL BUSINESS CONCERN WHICH SUBMITTED THE LOWEST RESPONSIVE BID.