B-157062, NOV. 5, 1965

B-157062: Nov 5, 1965

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 21. THE RECORD SHOWS THAT THE CONTRACTING OFFICER DETERMINED THAT THE SMALL BUSINESS ADMINISTRATION INDUSTRIAL CLASSIFICATION (SIC) NO. 3729 WAS APPLICABLE TO THIS PROCUREMENT AND INCLUDED THE APPLICABLE SMALL BUSINESS DEFINITION LIMITING BIDDING TO FIRMS WITH 1. SUCH DETERMINATION WAS BASED ON A PRIOR DECISION OF THE SBA APPEALS BOARD. WHICH WAS NOTED IN OUR DECISION B-154597. THE SIZE APPEALS BOARD DETERMINED THAT SIC NO. 3729 WAS APPLICABLE TO LIQUID OXYGEN INDICATORS. IT IS REPORTED THAT THE ONLY DIFFERENCE BETWEEN THE INDICATORS CONCERNED IN THAT DECISION AND THE INDICATORS INVOLVED IN THIS CASE IS THE LIGHTING AND SIZE OF THE INDICATORS.

B-157062, NOV. 5, 1965

TO CONSOLIDATED AIRBORNE SYSTEMS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE SMALL BUSINESS SIZE STANDARD USED IN INVITATION FOR BIDS NO. 33-657-65-255, ISSUED BY AFSC AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO. BY YOUR LETTER OF JULY 6, 1965, YOU LODGED A SIMILAR PROTEST IN RESPECT TO INVITATION NO. 33-657-65-326.

INVITATION NO. 255, ISSUED ON MAY 3, 1965, REQUESTED BIDS FOR THE FURNISHING OF LIQUID OXYGEN INDICATORS TYPE A/A24J-4, AERNO 46-1004 AND SPECIFIED JUNE 3, 1965, AS THE DATE FOR OPENING BIDS. THE RECORD SHOWS THAT THE CONTRACTING OFFICER DETERMINED THAT THE SMALL BUSINESS ADMINISTRATION INDUSTRIAL CLASSIFICATION (SIC) NO. 3729 WAS APPLICABLE TO THIS PROCUREMENT AND INCLUDED THE APPLICABLE SMALL BUSINESS DEFINITION LIMITING BIDDING TO FIRMS WITH 1,000 OR LESS EMPLOYEES. SUCH DETERMINATION WAS BASED ON A PRIOR DECISION OF THE SBA APPEALS BOARD, DATED AUGUST 17, 1964, WHICH WAS NOTED IN OUR DECISION B-154597, DATED OCTOBER 1, 1964. IN ITS DETERMINATION, THE SIZE APPEALS BOARD DETERMINED THAT SIC NO. 3729 WAS APPLICABLE TO LIQUID OXYGEN INDICATORS. IT IS REPORTED THAT THE ONLY DIFFERENCE BETWEEN THE INDICATORS CONCERNED IN THAT DECISION AND THE INDICATORS INVOLVED IN THIS CASE IS THE LIGHTING AND SIZE OF THE INDICATORS.

YOUR PROTEST IN THIS MATTER IS BASED ON YOUR CONTENTION THAT THE INSTRUMENT BEING PROCURED SHOULD BE CLASSIFIED UNDER SIC NO. 3821 (MECHANICAL MEASURING AND CONTROLLING INSTRUMENTS, EXCEPT AUTOMATIC TEMPERATURE CONTROLS), WITH A 500-EMPLOYEE SMALL BUSINESS SIZE STANDARD, INSTEAD OF SIC NO. 3729 (AIRCRAFT PARTS AND AUXILIARY EQUIPMENT, NOT ELSEWHERE CLASSIFIED), WHICH HAS A 1,000-EMPLOYEE SMALL BUSINESS SIZE STANDARD.

IT IS ADMINISTRATIVELY REPORTED THAT YOUR PROTEST IN THIS MATTER WAS RECEIVED ON JUNE 22, 1965, OR 19 DAYS AFTER THE SCHEDULED TIME FOR BID OPENING. IN THIS RESPECT, PARAGRAPH 1-703 (B) (6) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), PROVIDES AS FOLLOWS:

"/6) AN APPEAL FROM PRODUCT CLASSIFICATION DETERMINATION ESTABLISHING THE SIZE DEFINITION USED IN A SPECIFIC PROCUREMENT MADE BY A CONTRACTING OFFICER MAY BE TAKEN NOT LESS THAN 10 DAYS BEFORE BID OPENING DATE OR CLOSING DATE FOR SUBMISSION OF PROPOSALS WHEREIN THE BID OPENING OR CLOSING DATE IS MORE THAN 30 DAYS AFTER THE ISSUANCE OF THE IFB OR RFP, OR NOT LESS THAN 5 WORKING DAYS BEFORE THE BID OPENING DATE OR CLOSING DATE FOR SUBMISSION OF PROPOSALS IN CASES WHEREIN THE BID OPENING DATE OR CLOSING DATE FOR SUBMISSION OF PROPOSALS IS 30 DAYS OR LESS AFTER THE ISSUANCE OF AN IFB OR AN RFP. SUCH APPEALS SHALL BE DIRECTED TO THE SBA SIZE APPEALS BOARD, WASHINGTON, D.C.'

THE FOREGOING REGULATION IS IN CONSONANCE WITH SECTION 121.3-6 (B) (3) (II) OF THE SMALL BUSINESS SIZE STANDARDS REGULATION, AS AMENDED, 30 F.R. 2247-56, PROVIDING FOR APPEALS FROM A PRODUCT CLASSIFICATION DETERMINATION BY A CONTRACTING OFFICER. UNDER THESE CONTROLLING REGULATIONS, YOUR PROTEST IN THIS PROCUREMENT WAS UNTIMELY AND COULD NOT BE CONSIDERED.

HOWEVER, AS ABOVE INDICATED, THE SBA SIZE APPEALS BOARD, IN ITS DECISION OF AUGUST 17, 1964, DEALING WITH A SIMILAR PROCUREMENT, HELD AS FOLLOWS:

"E. A PRODUCTION MODEL OF THE LIQUID OXYGEN INDICATOR, TOGETHER WITH A MECHANICAL MEASURING DEVICE, WAS SUBMITTED FOR THE BOARD'S INSPECTION AND COMPARISON.

"F. AFTER A REVIEW OF THE EVIDENCE, THE BOARD FINDS THAT:

"/1) THE LIQUID OXYGEN INDICATOR IS NOT A MECHANICAL INSTRUMENT.

"/2) IT IS A HIGHLY COMPLEX ELECTRONIC COMPONENT OF AN OXYGEN SYSTEM REQUIRING A SUBSTANTIAL ELECTRONICS CAPABILITY ESSENTIAL TO ITS MANUFACTURE AND TO ASSURE ITS SUCCESSFUL OPERATION AND MAINTENANCE.

"/3) THE LIQUID OXYGEN INDICATOR DOES NOT HAVE A MEASURING OR CONTROLLING FUNCTION.

"/4) THE COMPONENTS OF THE INDICATOR INCLUDE A NULL BALANCING CAPACITANCE BRIDGE, A TRANSISTOR TYPE AMPLIFIER, A SERVO MOTOR, AND AN INDICATING UNIT.

"/5) THE LIQUID OXYGEN INDICATOR INVOLVED IN THIS APPEAL IS USED EXCLUSIVELY IN MANNED AIRCRAFT, IS A PART OF A LIQUID OXYGEN SYSTEM AND LIQUID OXYGEN SYSTEMS FOR AIRCRAFT HAVE BEEN INCLUDED IN SIC 3729 IN THE 1963 SUPPLEMENT TO THE SIC MANUAL.

"G. IN VIEW OF THE FOREGOING, THE BOARD FINDS THAT SIC 3729 IS THE APPROPRIATE CLASSIFICATION FOR THE LIQUID OXYGEN INDICATOR.'

SINCE THE ABOVE DECISION SUBSTANTIATES THE DETERMINATION MADE BY THE CONTRACTING OFFICER TO USE SIC NO. 3729 IN THE INSTANT PROCUREMENT, WESEE NO LEGAL BASIS TO OBJECT TO SUCH DETERMINATION.

REGARDING YOUR PROTEST UNDER INVITATION NO. 326, WE NOTE THAT YOU APPEALED THE DECISION OF THE CONTRACTING OFFICER TO INCLUDE THE SMALL BUSINESS DEFINITION LIMITING BIDDING TO FIRMS WITH 1,000 OR LESS EMPLOYEES (SIC NO. 3729) UNDER THAT INVITATION, COVERING THE PROCUREMENT OF A LIQUID OXYGEN INDICATOR TYPE A/A24J-8, AERNO 46-1005. IT IS REPORTED THAT THE CONTRACTING OFFICER CONSIDERED THIS A TIMELY APPEAL AND REFERRED THE MATTER TO THE SBA SIZE APPEALS BOARD FOR ITS DETERMINATION, AND ON AUGUST 13, 1965, IT WAS DETERMINED THAT SIC NO. 3729 WAS THE PROPER CLASSIFICATION IN SUCH PROCUREMENT.

UNDER 15 U.S.C. 637 (B) (6), SBA IS AUTHORIZED TO DETERMINE WHICH FIRMS WITHIN ANY INDUSTRY ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS FOR PURPOSES OF GOVERNMENT PROCUREMENT. THIS PROVISION OF LAW FURTHER STATES THAT "OFFICES OF THE GOVERNMENT HAVING PROCUREMENT OR LENDING POWERS * * * SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATION AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED "SMALL BUSINESS CONCERNS," AS AUTHORIZED AND DIRECTED UNDER THIS PARAGRAPH.'

IN VIEW OF THE FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION IN THIS MATTER, AND YOUR PROTEST IS DENIED.