B-162130, OCT. 5, 1967

B-162130, OCT. 5, 1967

BIDDERS - SMALL BUSINESS - SIZE CERTIFICATION DECISION TO MILITARY BASE MANAGEMENT, INC., CONCERNING PROTEST TO AWARD TO MANPOWER OF ALABAMA, INC. BY DEPT. OF THE ARMY UNDER 100 PERCENT SMALL BUSINESS SET ASIDE PROCUREMENT FOR MESS SERVICES AT OFFICERS CANDIDATE BRIGADE, FORT KNOX, KY. A LOW BIDDER WHO CERTIFIED ITSELF AS SMALL BUSINESS AND WHO WITHIN MONTH PRECEDING PROCUREMENT HAD BEEN DETERMINED TO BE SMALL BUSINESS BY SBA HAD SELF CERTIFICATION PROPERLY ACCEPTED AS CONCLUSIVE AS TO BIDDER'S SIZE STATUS NOTWITHSTANDING THAT SAME BIDDER FOR SIMILAR PROCUREMENTS ON WEST COAST WAS LARGE BUSINESS. ANY DISAGREEMENT WITH SIZE DETERMINATION IS APPEALABLE TO SIZE APPEALS BOARD. WITH RESPECT TO AUTHORITY WHICH PERMITS BIDDER'S SMALL BUSINESS STATUS TO BE DEPENDENT UPON SERVICES, ANY CONCERN ENGAGING IN MORE THAN ONE INDUSTRY IS SUBJECT TO SIZE STANDARDS ESTABLISHED FOR EACH SEPARATE CLASSIFICATION OF INDUSTRY.

TO MILITARY BASE MANAGEMENT, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 25, 1967, PROTESTING THE AWARD OF A CONTRACT TO MANPOWER OF ALABAMA, INC. (MANPOWER), BY THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS (IFB) NO. DABB03-68-B- 0003, A 100 PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS COVERING MESS ATTENDANT SERVICES AT THE OFFICERS CANDIDATE BRIGADE, FORT KNOX, KENTUCKY.

YOUR PROTEST IS BASED UPON THE ALLEGATION THAT MANPOWER CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN WHILE IN SIMILAR PROCUREMENTS ON THE WEST COAST IT IS CONSIDERED TO BE A LARGE BUSINESS. IN THIS REGARD YOU CITE THE SMALL BUSINESS ADMINISTRATION'S (SBA) SIZE STANDARDS LISTED IN THE FEDERAL REGISTER FOR JUNE 29, 1967, VOLUME 32, NO. 125, PAGE 9218. ADDITION YOU REQUEST TO BE ADVISED WHETHER AUTHORITY EXISTS WHICH PERMITS MANPOWER'S SMALL BUSINESS STATUS TO BE DEPENDENT UPON THE IFB REQUIREMENTS.

IN A REPORT TO THIS OFFICE THE CONTRACTING OFFICER STATES AS FOLLOWS:

"EACH OF THE BIDDERS CERTIFIED THEMSELVES AS A SMALL BUSINESS FIRM. 0900 HOURS ON 25 JULY 1967 CONTRACT WAS AWARDED TO THE LOW BIDDER, MANPOWER OF ALABAMA, INC. AWARD WAS MADE AFTER A PRE-AWARD SURVEY WHICH INCLUDED VERIFYING LOW BIDDER'S FINANCIAL STATUS AND SATISFACTORY PERFORMANCE OF SIMILAR CONTRACTS AT REDSTONE ARSENAL AND FORT MCCLELLAN, ALABAMA. IN ADDITION, CONTRACTOR WAS PRESENTLY PERFORMING A SIMILAR CONTRACT AT FORT KNOX. DUE TO THE SHORT TIME REMAINING BETWEEN BID OPENING DATE AND THE STARTING DATE OF AUGUST 1, 1967, THE ABOVE DATA WAS OBTAINED BY TELEPHONE.

"A PROTEST OF AWARD TO MANPOWER OF ALABAMA, INC. WAS RECEIVED FROM MILITARY BASE MANAGEMENT, INC. AT THIS STATION AT 13:02 HOURS ON 25 JULY 1967. A TELEPHONIC PROTEST WAS RECEIVED FROM INLAND SERVICE CORPORATION AT 11:00 HOURS ON 25 JULY 1967. A CONFIRMING LETTER WAS RECEIVED FROM INLAND ON 27 JULY 1967. SINCE BOTH OF THESE PROTESTS WERE RECEIVED AFTER AWARD THEY WERE FORWARDED TO THE SMALL BUSINESS ADMINISTRATION IN ACCORDANCE WITH PARA 1-703 (B) (1) (III) OF ARMED SERVICES PROCUREMENT REGULATION (ASPR).

"THE SUCCESSFUL BIDDER, MANPOWER OF ALABAMA, INC., WAS NOTIFIED OF THE PROTESTS AGAINST THE AWARD. MANPOWER PRESENTED A LETTER FROM THE BIRMINGHAM REGIONAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION DATED 22 JUNE 1967 CERTIFYING HIM AS A SMALL BUSINESS CONCERN.

"BY LETTER DATED 8 AUGUST 1967 THE CONTRACTING OFFICER WAS ADVISED BY THE BIRMINGHAM REGIONAL OFFICE OF SMALL BUSINESS ADMINISTRATION THAT MANPOWER OF ALABAMA, INC. HAD BEEN DETERMINED A SMALL BUSINESS CONCERN AS DEFINED IN THE SMALL BUSINESS SIZE STANDARDS AND REGULATIONS AND WAS THEREFORE ELIGIBLE FOR ANY AWARD RESULTING FROM INVITATION FOR BIDS DABB03-68-B- 0003. THEY FURTHER ADVISED THAT THE INTERESTED PARTIES, NAMELY, MILITARY BASE MANAGEMENT, INC. AND INLAND SERVICE CORPORATION HAD BEEN ADVISED OF THEIR DETERMINATION.'

WITH REGARD TO SELF-CERTIFICATION, TITLE 13, CHAPTER 1, PART 127, SECTION 121.3-8 OF THE CODE OF FEDERAL REGULATIONS (CFR) PROVIDES THAT: "* * * IN THE SUBMISSION OF A BID OR PROPOSAL ON A GOVERNMENT PROCUREMENT, A CONCERN WHICH MEETS THE CRITERIA PROVIDED IN THIS SECTION MAY REPRESENT THAT IT IS A SMALL BUSINESS. IN THE ABSENCE OF A WRITTEN PROTEST OR OTHER INFORMATION WHICH WOULD CAUSE HIM TO QUESTION THE VERACITY OF THE SELF- CERTIFICATION, THE CONTRACTING OFFICER SHALL ACCEPT THE SELF-CERTIFICATION AT FACE VALUE FOR THE PARTICULAR PROCUREMENT INVOLVED.'

IT IS CLEAR FROM THE RECORD BEFORE US THAT THE SELF-CERTIFICATION BY MANPOWER WAS COMPLETE AND ADEQUATE JUSTIFICATION FOR THE AWARD. FURTHERMORE, SINCE THE SBA HAD WITHIN A MONTH PRECEDING THE SUBJECT SOLICITATION DECLARED THAT THE FIRM WAS A SMALL BUSINESS CONCERN, THERE IS NO BASIS TO SUGGEST THAT MANPOWER WAS LACKING IN GOOD FAITH WHEN IT CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN. IN ANY EVENT, THE DECISION OF THE APPROPRIATE SBA REGIONAL OFFICE, UPON YOUR PROTEST, THAT MANPOWER WAS IN FACT ELIGIBLE AS A SMALL BUSINESS CONCERN FOR AWARD UNDER THE REFERENCED INVITATION, MUST BE ACCEPTED AS CONCLUSIVE EVIDENCE OF MANPOWER'S SIZE STATUS. SEE 15 U.S.C. 637 (B) (6) AND 38 COMP. GEN. 328. ANY DISAGREEMENT WITH THE DETERMINATION BY THE SBA REGIONAL OFFICE IS APPEALABLE TO THE SIZE APPEALS BOARD OF SBA IN THE MANNER PROVIDED IN 13 CFR 121.3-6 (B).

CONCERNING YOUR REQUEST TO BE ADVISED WHETHER AUTHORITY EXISTS WHICH PERMITS MANPOWER'S SMALL BUSINESS STATUS TO BE DEPENDENT UPON THE TYPE OF SERVICES REQUIRED BY THE INVITATION, SECTION 2 (3) OF THE SMALL BUSINESS ACT OF JULY 18, 1958, P.L. 85-536 (15 U.S.C. 632) AUTHORIZES THE ADMINISTRATOR OF THE SBA TO DEFINE A SMALL BUSINESS CONCERN ON AN INDUSTRY -BY-INDUSTRY BASIS. BY REGULATION, 13 CFR 121.3 1 (B), THE ADMINISTRATOR HAS ADOPTED THE STANDARD INDUSTRIAL CLASSIFICATION MANUAL PUBLISHED BY THE BUREAU OF THE BUDGET AS THE BASIS FOR DIFFERENTIATION OF INDUSTRIES. ANY CONCERN ENGAGING IN MORE THAN ONE INDUSTRY LISTED IN THAT MANUAL IS THEREFORE SUBJECT TO THE SIZE STANDARDS ESTABLISHED FOR EACH SEPARATE CLASSIFICATION OF INDUSTRY. SEE 13 CFR 121.3-8 (E) AND ASPR 1-701.1 (D) FOR EXAMPLES OF VARYING SIZE STANDARDS FOR DIFFERING TYPES OF SERVICE WORK.

FOR THE REASONS STATED WE FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARD TO MANPOWER AND YOUR PROTEST MUST BE DENIED.