B-153655, JUL. 8, 1964

B-153655: Jul 8, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 3. INVITATION FOR BIDS AT/FS-17050 WAS ISSUED NOVEMBER 5. BIDS WERE OPENED NOVEMBER 26. CERTAIN ITEMS UNDER THE INVITATION WERE TOTALLY SET ASIDE FOR SMALL BUSINESS CONCERNS. SELF-CERTIFIED THAT IT WAS A SMALL BUSINESS CONCERN. WERE AWARDED TO THIS FIRM ON FEBRUARY 14. THE CONTRACTING OFFICER SHALL ACCEPT AS CONCLUSIVE FOR THE PURPOSE OF A SPECIFIC PROCUREMENT A REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN AS DEFINED BY THE SMALL BUSINESS ADMINISTRATION. AT THE TIME OF THE AWARD THE CONTRACTING OFFICER RESPONSIBLE FOR THIS PROCUREMENT HAD NOT RECEIVED ANY PROTEST REGARDING THE SMALL BUSINESS STATUS OF FLORIDA OXYGEN NOR HAD HE ANY REASON TO QUESTION THE BIDDER'S REPRESENTATION AS A SMALL BUSINESS CONCERN AND THE RECORD DISCLOSES THAT FLORIDA OXYGEN SERVICE WAS IN FACT A SMALL BUSINESS CONCERN AT THE TIME OF THE AWARD.

B-153655, JUL. 8, 1964

TO GEORGIA WELDING SUPPLY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 3, 1964, AND ENCLOSURES, PROTESTING THE AWARD OF GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-04S-11390, TO FLORIDA OXYGEN SERVICE, ORLANDO, FLORIDA.

INVITATION FOR BIDS AT/FS-17050 WAS ISSUED NOVEMBER 5, 1963, BY GENERAL SERVICES ADMINISTRATION, ATLANTA REGIONAL OFFICE, AND BIDS WERE OPENED NOVEMBER 26, 1963. THE INVITATION PROVIDED FOR INDEFINITE QUANTITY REQUIREMENTS OF INDUSTRIAL GASES UNDER FEDERAL SUPPLY SCHEDULE, FSC GROUP 68, CHEMICALS AND CHEMICAL PRODUCTS, PART III, FOR THE PERIOD DECEMBER 1, 1963, THROUGH NOVEMBER 30, 1964, FOR GSA REGION 4. CERTAIN ITEMS UNDER THE INVITATION WERE TOTALLY SET ASIDE FOR SMALL BUSINESS CONCERNS.

FLORIDA OXYGEN SERVICE INC., DIVISION OF AMERICAN CRYOGENICS, INC., ORLANDO, FLORIDA, IN ITS BID DATED NOVEMBER 22, 1963, SELF-CERTIFIED THAT IT WAS A SMALL BUSINESS CONCERN. CONTRACTS GS-04S-11390 AND 11391, COVERING SET-ASIDE AND NON-SET-ASIDE PORTIONS, RESPECTIVELY, WERE AWARDED TO THIS FIRM ON FEBRUARY 14, 1964, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

SECTION 1-1. 703-1, FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT IN THE ABSENCE OF A WRITTEN PROTEST OR QUESTION, THE CONTRACTING OFFICER SHALL ACCEPT AS CONCLUSIVE FOR THE PURPOSE OF A SPECIFIC PROCUREMENT A REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN AS DEFINED BY THE SMALL BUSINESS ADMINISTRATION.

AT THE TIME OF THE AWARD THE CONTRACTING OFFICER RESPONSIBLE FOR THIS PROCUREMENT HAD NOT RECEIVED ANY PROTEST REGARDING THE SMALL BUSINESS STATUS OF FLORIDA OXYGEN NOR HAD HE ANY REASON TO QUESTION THE BIDDER'S REPRESENTATION AS A SMALL BUSINESS CONCERN AND THE RECORD DISCLOSES THAT FLORIDA OXYGEN SERVICE WAS IN FACT A SMALL BUSINESS CONCERN AT THE TIME OF THE AWARD. WE HAVE HELD THAT THE DETERMINATION OF THE ELIGIBILITY OF A BIDDER AS A SMALL BUSINESS CONCERN UNDER A SMALL BUSINESS SET-ASIDE PROCUREMENT IS MADE AS OF THE DATE OF THE AWARD. HENCE THE DATE OF AWARD MUST OF NECESSITY FIX AND ESTABLISH THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE CONTRACT, INCLUDING THE LEGAL CAPACITY OF A BIDDER TO RECEIVE AN AWARD WHICH IS RESTRICTED BY STATUTE TO A CERTAIN CLASS OF BIDDERS. COMPARE 40 COMP. GEN. 550. IT THUS APPEARS THAT THE CONTRACTING OFFICER PROCEEDED IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS AND THAT A VALID AND SUBSISTING CONTRACT RESULTED TO WHICH AWARD THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING ON THE BASIS OF THE ELIGIBILITY OF FLORIDA OXYGEN SERVICE AS A SMALL BUSINESS CONCERN.