B-160285, DEC. 13, 1966

B-160285: Dec 13, 1966

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ROSENBERG AND GALLAGHER: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 2. ON THE BASIS THAT IT WAS NOT A SMALL BUSINESS CONCERN. WERE OPENED ON SEPTEMBER 27. THE GROUND FOR THE PROTEST WAS THAT BOHAGER WAS NOT A SMALL BUSINESS AS DEFINED BY APPLICABLE SMALL BUSINESS ADMINISTRATION REGULATIONS. WAS NOT CONSIDERED A SMALL BUSINESS FOR THIS PROCUREMENT. WE HAVE NOW RECEIVED FROM THE SMALL BUSINESS ADMINISTRATION A COPY OF THE SIZE APPEALS BOARD DECISION. THIS ACTION BY THE SIZE APPEAL BOARD IS CONCLUSIVE ON THE PROCUREMENT OFFICES. YOU REFER TO THE SIZE APPEALS BOARD DECISION AND INDICATE THAT IN YOUR OPINION IT IS INCONSISTENT WITH THE BOARD'S OPINION IN ANOTHER CASE. WE MUST ADVISE THAT WE WILL NOT QUESTION THE PROPRIETY OF THE BOARD'S ACTION SINCE THERE IS NO EVIDENCE THAT ITS DETERMINATION WAS ARBITRARY OR CAPRICIOUS.

B-160285, DEC. 13, 1966

TO TYDINGS, ROSENBERG AND GALLAGHER:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 2, 1966, ADDRESSED HERE AND THE COPIES OF YOUR LETTERS OF OCTOBER 20, 1966, TO THE SMALL BUSINESS ADMINISTRATION (SBA), ON BEHALF OF FRANK P. R. BOHAGER AND SONS, INC., RELATING TO THEIR APPEAL TO THE SMALL BUSINESS ADMINISTRATION OF A SIZE DETERMINATION, AND PROTESTING AGAINST AN AWARD OF A CONTRACT TO THE ONLY OTHER BIDDER, MODERN TRASHMOVAL, INC., ON THE BASIS THAT IT WAS NOT A SMALL BUSINESS CONCERN, ALL IN CONNECTION WITH GENERAL SERVICES ADMINISTRATION INVITATION FOR BIDS NO. GS-03B-12428.

GENERAL SERVICES ADMINISTRATION, REGION 3, ISSUED AN INVITATION FOR BIDS ON SEPTEMBER 8, 1966, FOR TRASH AND DEBRIS REMOVAL AND DISPOSAL SERVICES IN THE BALTIMORE, MARYLAND, AREA FOR A ONE-YEAR PERIOD, AS ITEMIZED AND DESCRIBED IN THE SPECIFICATIONS. BIDS RECEIVED FROM MODERN TRASHMOVAL, INC., AND FRANK P. R. BOHAGER AND SONS, INC., WERE OPENED ON SEPTEMBER 27, 1966.

MODERN TRASHMOVAL, INC., THROUGH ITS ATTORNEY, PROTESTED BY LETTER OF SEPTEMBER 28, 1966, ANY AWARD TO THE OSTENSIBLE LOW BIDDER, FRANK P. R. BOHAGER AND SONS, INC. THE GROUND FOR THE PROTEST WAS THAT BOHAGER WAS NOT A SMALL BUSINESS AS DEFINED BY APPLICABLE SMALL BUSINESS ADMINISTRATION REGULATIONS, AND AS REQUIRED BY THE TERMS OF THE INVITATION.

BY ITS LETTERS OF OCTOBER 10, 1966, AS SUPPLEMENTED ON OCTOBER 14, 1966, GSA REQUESTED THE SMALL BUSINESS ADMINISTRATION TO FURNISH A SIZE DETERMINATION ON THE FIRM OF FRANK P. R. BOHAGER AND SONS, INC. THE REGIONAL DIRECTOR OF THE SMALL BUSINESS ADMINISTRATION ADVISED BY LETTER OF OCTOBER 19, 1966, THAT FRANK P. R. BOHAGER AND SONS, INC., WAS NOT CONSIDERED A SMALL BUSINESS FOR THIS PROCUREMENT.

AS STATED ABOVE, IN ADDITION TO THE APPEAL FROM THE ADVERSE DECISION CONCERNING THE SMALL BUSINESS STATUS OF FRANK P. R. BOHAGER AND SONS, INC., YOU WROTE, IN BEHALF OF BOHAGER, TO THE SMALL BUSINESS ADMINISTRATION, TO GSA AND OUR OFFICE ON OCTOBER 20, 1966, PROTESTING THE SMALL BUSINESS STATUS OF THE OTHER BIDDER, MODERN TRASHMOVAL, INC., AND PROTESTING ANY AWARD TO THAT CONCERN.

WE HAVE NOW RECEIVED FROM THE SMALL BUSINESS ADMINISTRATION A COPY OF THE SIZE APPEALS BOARD DECISION, DATED NOVEMBER 23, 1966, IN THE MATTER OF FRANK P. R. BOHAGER AND SONS, INC., DENYING YOUR APPEAL ON BEHALF OF BOHAGER FROM THE DETERMINATION OF THE SMALL BUSINESS ADMINISTRATION, BALTIMORE REGIONAL OFFICE, THAT BOHAGER DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN FOR GOVERNMENT PROCUREMENT UNDER IFB-GS-03B-12428. THIS ACTION BY THE SIZE APPEAL BOARD IS CONCLUSIVE ON THE PROCUREMENT OFFICES. SEE 15 U.S.C. 635 (B) (6).

IN YOUR LETTER OF DECEMBER 2, 1966, YOU REFER TO THE SIZE APPEALS BOARD DECISION AND INDICATE THAT IN YOUR OPINION IT IS INCONSISTENT WITH THE BOARD'S OPINION IN ANOTHER CASE. YOU ASK OUR OFFICE TO RULE ON THE PROPRIETY OF THE BOARD'S ACTIONS. WE MUST ADVISE THAT WE WILL NOT QUESTION THE PROPRIETY OF THE BOARD'S ACTION SINCE THERE IS NO EVIDENCE THAT ITS DETERMINATION WAS ARBITRARY OR CAPRICIOUS. NOR IS THERE ANY REQUIREMENT THAT PRICES OF SMALL BUSINESS SET-ASIDES EQUAL OR BETTER PRICES OBTAINABLE THROUGH UNRESTRICTED BIDDING. AS TO YOUR FURTHER STATEMENT THAT THE EFFECT OF THE BOARD'S DECISION CREATES A MONOPOLISTIC BIDDING SITUATION, THIS IS A MATTER TO BE CONSIDERED BY THE CONTRACTING OFFICER IN DECIDING WHETHER TO AWARD A CONTRACT TO THE SOLE SURVIVING BIDDER, OR TO READVERTISE ON AN UNRESTRICTED BASIS. WE ALSO MUST ADVISE THAT THIS DECISION MUST BE MADE INITIALLY BY THE CONTRACTING OFFICER ON THE BASIS OF ALL INFORMATION AVAILABLE TO HIM. OUR FUNCTION IS TO SEE THAT PROCUREMENTS ARE MADE IN ACCORD WITH APPROPRIATE STATUTES AND REGULATIONS.

IN REGARD TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO MODERN TRASHMOVAL, INC., ON THE BASIS THAT IT IS NOT A SMALL BUSINESS CONCERN FOR PURPOSES OF THIS PROCUREMENT, YOU ARE INFORMED THAT THE METHOD FOR DETERMINING SUCH MATTERS IS PRESCRIBED IN THE FEDERAL PROCUREMENT REGULATIONS, SECTION 1-1.703-2, WHICH PROVIDES IN SUBSECTIONS (A) AND (B) IN PERTINENT PART, AS FOLLOWS:

"/A) ANY BIDDER OR OFFEROR MAY CHALLENGE THE SMALL BUSINESS STATUS OF ANY OTHER BIDDER OR OFFEROR ON THE SAME PROCUREMENT BY SENDING A WRITTEN PROTEST, AS DEFINED IN PARAGRAPH (B) OF THIS SEC. 1-1.-703-2, TO THE CONTRACTING OFFICER RESPONSIBLE FOR THE PARTICULAR PROCUREMENT. ANY CONTRACTING OFFICER WHO RECEIVES A TIMELY PROTEST, OR WHO WISHES TO QUESTION THE SMALL BUSINESS STATUS OF A BIDDER OR OFFEROR HIMSELF, SHALL FORWARD SUCH PROTEST RECORD (OR SUBMIT HIS PROTEST) TO THE SBA REGIONAL OFFICE SERVING THE AREA IN WHICH THE PROTESTED CONCERN IS LOCATED.

"/B) AS USED IN THIS SECTION,"PROTEST" MEANS A CHALLENGE IN WRITING FROM ANY BIDDER OR OFFEROR AS TO THE SMALL BUSINESS STATUS OF ANY OTHER BIDDER OR OFFEROR ON THE SAME PROCUREMENT. THE PROTEST SHALL CONTAIN THE BASIS FOR THE PROTEST, TOGETHER WITH SPECIFIC DETAILED EVIDENCE SUPPORTING THE PROTESTANT'S CLAIM THAT SUCH BIDDER OR OFFEROR IS NOT A SMALL BUSINESS CONCERN. SUCH PROTEST MUST BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE CLOSE OF BUSINESS ON THE 5TH WORKING DAY AFTER BID OPENING DATE OR CLOSING DATE FOR THE RECEIPT OF PROPOSALS.'

INASMUCH AS YOUR PROTEST AGAINST AWARD OF A CONTRACT TO MODERN TRASHMOVAL AS A SMALL BUSINESS CONCERN IS DATED OCTOBER 20, 1966, A DAY MORE THAN TWO WEEKS SUBSEQUENT TO THE BID OPENING, IT CANNOT BE CONSIDERED AS HAVING BEEN TIMELY FILED AND IS NOT A VALID PROTEST IN ACCORDANCE WITH THE ABOVE REGULATION.