B-151954, SEP. 10, 1963

B-151954, SEP. 10, 1963

TO THE MOUNTAIN STATE CONSTRUCTION COMPANY:

THIS REFERS TO YOUR LETTER OF JULY 3, 1963, AND OTHER CORRESPONDENCE, PROTESTING AGAINST THE AWARD MADE BY THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS NO. ENG-01-076-63-53.

THE INVITATION COVERED THE CONSTRUCTION OF A STORM DRAINAGE SYSTEM AT FORT CAMPBELL, KENTUCKY, AND AWARD WAS RESTRICTED TO SMALL BUSINESS. BIDS WERE OPENED ON JUNE 12, 1963, AND PATRICK HARRISON, INCORPORATED, GOLDEN, COLORADO, WAS FOUND TO BE THE LOW BIDDER AT $1,864,176. YOUR FIRM WAS SECOND LOW AT $2,247,613.85.

ON JUNE 16, 1963, YOU PROTESTED AGAINST AN AWARD TO THE LOW BIDDER ON THE BASIS THAT IT WAS NOT A SMALL BUSINESS FIRM QUALIFIED FOR AWARD. TELETYPE OF JUNE 20, 1963, THE SBA REGIONAL OFFICE IN DENVER, COLORADO, ADVISED THE CONTRACTING OFFICER THAT PATRICK HARRISON, INCORPORATED, WITH ITS AFFILIATES, WAS A QUALIFIED SMALL BUSINESS CONCERN. ON JUNE 21, 1963, YOU REQUESTED OF SBA THAT AN INVESTIGATION BE MADE OF THE RELATIONSHIP BETWEEN THE LOW BIDDER AND PATRICK HARRISON COMPANY, LIMITED, TORONTO, CANADA. BY TELETYPE DATED JUNE 27, 1963, THE DIRECTOR, OFFICER OF SMALL BUSINESS SIZE STANDARDS, SBA, WASHINGTON, D.C., NOTIFIED YOU THAT "* * * PATRICK HARRISON, INCORPORATED, IS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF GOVERNMENT CONSTRUCTION CUREMENTS.' THIS WAS CONFIRMED BY DETAILED FINDINGS AND DECISION DATED JUNE 28, 1963. ON JUNE 27, 1963, YOU FILED NOTICE OF AN APPEAL TO THE SIZE APPEALS BOARD.

ON JUNE 29, 1963, IN VIEW OF THE REPORTED FACT THAT THE FUNDS FOR THIS PROJECT WERE DUE TO EXPIRE BY JUNE 30, 1963, THE ARMY RELEASED A NOTICE OF AWARD TO THE LOW BIDDER.

YOU PROTEST THE AWARD ON THE BASIS THAT THE LOW BIDDER IS SO AFFILIATED WITH PATRICK HARRISON, LIMITED, OF CANADA AS NOT TO QUALIFY AS SMALL BUSINESS AND YOU CONTEND THAT AWARD SHOULD NOT HAVE BEEN MADE WHILE YOUR SIZE APPEAL WAS STILL PENDING WITH THE SBA. HOWEVER, BY DECISION DATED AUGUST 23, 1963, THE SBA SIZE APPEALS BOARD DETERMINED THAT THE LOW BIDDER, PATRICK HARRISON, NC., WAS NOT AFFILIATED WITH PATRICK HARRISON COMPANY, LTD., AND YOUR APPEAL WAS DENIED. WITH AUTHORITY TO DETERMINE WHETHER A PARTICULAR FIRM IS A SMALL BUSINESS CONCERN FOR PURPOSES OF GOVERNMENT PROCUREMENT; AND THESE DETERMINATIONS ARE BINDING ON OUR OFFICE. 38 COMP. GEN. 328, 33L. SO FAR AS THE TIME OF AWARD IS CONCERNED, WHEN THE AWARD WAS ANNOUNCED ON JUNE 29 THE SBA HAD ALREADY TWICE CONSIDERED AND REJECTED YOUR SIZE PROTEST. COMPELLING REASON EXISTED FOR MAKING AWARD BEFORE THE CLOSE OF THE FISCAL YEAR. AS THERE IS NO REQUIREMENT IN LAW OR REGULATION THAT THE CONTRACTING OFFICER HOLE UP AWARD PENDING APPEAL OF AN SBA DECISION TO THE SBA SIZE APPEALS BOARD (B- 148911, JULY 12, 1962), WE DO NOT CONCLUDE THAT THE AWARD SHOULD HAVE BEEN DELAYED TO AWAIT THE FINAL DETERMINATION ON YOUR APPEAL.