B-149278, AUG. 13, 1962

B-149278: Aug 13, 1962

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WAS OPENED AS SCHEDULED AND THE FOLLOWING BIDS WERE RECEIVED: TABLE EDWARD H. YOUR PROTEST AGAINST AN AWARD TO ELLIS IS BASED ON TWO ALLEGATIONS. THAT ELLIS IS NOT IN THE DREDGING BUSINESS. THAT ELLIS WILL BE ASSISTED BY A LARGE BUSINESS CONCERN IN VIOLATION OF THE SMALL BUSINESS ACT. TO DETERMINE WHETHER ELLIS WAS QUALIFIED TO RECEIVE AN AWARD UNDER THE SUBJECT INVITATION. IT WAS POINTED OUT TO SBA THAT THE PREAWARD SURVEY OF ELLIS' CAPABILITIES DISCLOSED THAT ELLIS INTENDED TO EXERCISE COMPLETE SUPERVISION AND CONTROL OVER PLANT OPERATION. THAT IT WILL PERFORM 30 PERCENT OF SUPPORTING OPERATIONS. THERE IS NO LAW OR REGULATION WHICH PRECLUDES SUBCONTRACTING WITH LARGE BUSINESS CONCERNS FOR A PORTION OF A CONSTRUCTION PROJECT.

B-149278, AUG. 13, 1962

TO THE NEW ENGLAND DREDGE AND DOCK COMPANY:

BY LETTER DATED JUNE 21, 1962, WITH ENCLOSURE, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO EDWARD H. ELLIS AND SON UNDER INVITATION FOR BIDS NO. CIVENG-30-075-62-61, OPENED ON JUNE 19, 1962, BY THE CORPS OF ENGINEERS, COVERING THE DREDGING OF A TURNING BASIN IN THE HACKENSACK RIVER, NEW JERSEY.

THE INVITATION, ISSUED ON A SMALL BUSINESS SET-ASIDE BASIS, WAS OPENED AS SCHEDULED AND THE FOLLOWING BIDS WERE RECEIVED:

TABLE

EDWARD H. ELLIS AND SON $224,476.86

THE NEW ENGLAND DREDGE AND DOCK COMPANY 229,640.10

GOVERNMENT ESTIMATE 253,251.87

THE LOW BIDDER--- EDWARD H. ELLIS AND SON--- PROPOSED TO CHARTER THE "DREDGE MARYLAND" WITH ITS CREW FROM THE AMERICAN DREDGING COMPANY, APPARENTLY A LARGE BUSINESS CONCERN. YOUR PROTEST AGAINST AN AWARD TO ELLIS IS BASED ON TWO ALLEGATIONS; ONE, THAT ELLIS IS NOT IN THE DREDGING BUSINESS; AND TWO, THAT ELLIS WILL BE ASSISTED BY A LARGE BUSINESS CONCERN IN VIOLATION OF THE SMALL BUSINESS ACT.

THE PROCUREMENT OFFICE REQUESTED THE SMALL BUSINESS ADMINISTRATION (SBA) ON JULY 26, 1962, TO DETERMINE WHETHER ELLIS WAS QUALIFIED TO RECEIVE AN AWARD UNDER THE SUBJECT INVITATION. IT WAS POINTED OUT TO SBA THAT THE PREAWARD SURVEY OF ELLIS' CAPABILITIES DISCLOSED THAT ELLIS INTENDED TO EXERCISE COMPLETE SUPERVISION AND CONTROL OVER PLANT OPERATION, AND THAT IT WILL PERFORM 30 PERCENT OF SUPPORTING OPERATIONS, INCLUDING DIKES AND LAND WORK, WITH ITS OWN FORCES. THE PREAWARD SURVEY FURTHER DISCLOSED THAT ELLIS HAS SUCCESSFULLY PERFORMED DREDGING CONTRACTS IN THE PAST. LETTER DATED JULY 5, 1962, SBA ADVISED THAT THEY DID NOT FIND ANY INDICATION OF A VIOLATION OF EITHER THE SMALL BUSINESS ACT OR THE SBA RULES AND REGULATIONS.

IN THIS CONNECTION, THERE IS NO LAW OR REGULATION WHICH PRECLUDES SUBCONTRACTING WITH LARGE BUSINESS CONCERNS FOR A PORTION OF A CONSTRUCTION PROJECT. UNDER SECTION 8 (B) (6) OF THE SMALL BUSINESS ACT, 15 U.S.C. 637 (B) (6), PROCUREMENT OFFICES OF THE GOVERNMENT ARE REQUIRED TO ACCEPT AS CONCLUSIVE THE SBA DETERMINATION AS TO WHICH BUSINESS FIRMS ARE TO BE DESIGNATED AS SMALL BUSINESS. SINCE SBA HAS DETERMINED THAT ELLIS IS ELIGIBLE FOR AWARD UNDER THE INVITATION AS A SMALL BUSINESS CONCERN, THE PROCUREMENT OFFICE HAD NO ALTERNATIVE BUT TO ACCEPT THAT DETERMINATION AS FINAL.