B-149575, SEP. 12, 1962

B-149575: Sep 12, 1962

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WHICH CONTRACT WAS SET ASIDE FOR SMALL BUSINESS UNDER INVITATION FOR BIDS NO. THAT BAY STATE IS DETERMINED TO BE SMALL BUSINESS FOR PURPOSES OF GOVERNMENT PROCUREMENT. THE SMALL BUSINESS ADMINISTRATION IS EMPOWERED TO DETERMINE WHICH FIRMS WITHIN ANY INDUSTRY ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS FOR PURPOSES OF GOVERNMENT PROCUREMENT. SUCH DETERMINATIONS ARE CONCLUSIVE UPON THE PROCUREMENT OFFICERS OF THE GOVERNMENT. WE HAVE CONSISTENTLY TAKEN THE POSITION THAT WE HAVE NO AUTHORITY TO QUESTION THE SIZE DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION. EXCEPT UPON CLEAR AND CONVINCING PROOF THAT THE FINDING IS ARBITRARY OR CLEARLY ERRONEOUS. YOU ALSO SUGGEST THAT THE PROCUREMENT SHOULD BE READVERTISED WITHOUT RESTRICTED COMPETITION IF IT WERE DETERMINED THAT BAY STATE WAS INELIGIBLE FOR AWARD.

B-149575, SEP. 12, 1962

TO MODEL ENGINEERING AND MANUFACTURING CORPORATION:

IN YOUR LETTER OF JULY 26, 1962, YOU PROTEST THE AWARD OF A CONTRACT TO BAY STATE ELECTRONICS CORPORATION, WHICH CONTRACT WAS SET ASIDE FOR SMALL BUSINESS UNDER INVITATION FOR BIDS NO. JD-IFB-383-1147-62. YOU ALLEGE THAT INFORMATION AT YOUR DISPOSAL INDICATES THAT BAY STATE MAY EXCEED THE SMALL BUSINESS SIZE STANDARDS SET FORTH BY THE SMALL BUSINESS ADMINISTRATION. IN THIS REGARD, SMALL BUSINESS ADMINISTRATION REPORTED ON JUNE 25, 1962, THAT BAY STATE IS DETERMINED TO BE SMALL BUSINESS FOR PURPOSES OF GOVERNMENT PROCUREMENT. UNDER THE TERMS OF THE SMALL BUSINESS ACT, AS AMENDED, 15 U.S.C. 637 (B) (6), THE SMALL BUSINESS ADMINISTRATION IS EMPOWERED TO DETERMINE WHICH FIRMS WITHIN ANY INDUSTRY ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS FOR PURPOSES OF GOVERNMENT PROCUREMENT, AND SUCH DETERMINATIONS ARE CONCLUSIVE UPON THE PROCUREMENT OFFICERS OF THE GOVERNMENT. WE HAVE CONSISTENTLY TAKEN THE POSITION THAT WE HAVE NO AUTHORITY TO QUESTION THE SIZE DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION, EXCEPT UPON CLEAR AND CONVINCING PROOF THAT THE FINDING IS ARBITRARY OR CLEARLY ERRONEOUS, B-136751, SEPTEMBER 25, 1958. SEE ALSO 35 COMP. GEN. 233 AND 37 ID. 679. NO EVIDENCE TO SUPPORT SUCH A DETERMINATION HAS BEEN SUBMITTED IN THIS INSTANCE.

YOU ALSO SUGGEST THAT THE PROCUREMENT SHOULD BE READVERTISED WITHOUT RESTRICTED COMPETITION IF IT WERE DETERMINED THAT BAY STATE WAS INELIGIBLE FOR AWARD, SINCE AWARD TO THE THIRD LOW BIDDER WOULD INVOLVE PREMIUM COSTS DETRIMENTAL TO THE PUBLIC INTEREST. SINCE BAY STATE APPARENTLY IS ELIGIBLE FOR AWARD, YOUR SECOND CONTENTION BECOMES ACADEMIC. HOWEVER, WE MAY NOTE THAT WITHDRAWAL OF SET-ASIDES AND READVERTISEMENTS ARE ORDINARILY MATTERS FOR ADMINISTRATIVE DETERMINATION. WHILE AN ADMINISTRATIVE DECISION TO WITHDRAW AND READVERTISE MAY BE SUBJECT TO REVIEW BY THIS OFFICE FOR THE REASONS SET FORTH IN B-148803, MAY 29, 1962, THE DECISION CITED IN YOUR LETTER OF JULY 26, 1962, THAT DECISION DOES NOT PURPORT TO GIVE OUR OFFICE AUTHORITY TO REQUIRE AN ADMINISTRATIVE AGENCY TO WITHDRAW A SMALL BUSINESS SET-ASIDE AND READVERTISE THE PROCUREMENT.