B-163289, FEB. 28, 1968

B-163289: Feb 28, 1968

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WAS NOT QUALIFIED SMALL BUSINESS CONCERN. MUST HAVE CONTRACTING OFFICER'S SIZE DETERMINATION CONSIDERED FINAL AND PROTEST DENIED. TO WAGNER MOVING AND STORAGE COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 10. BIDS WERE REQUESTED FOR SERVICES FOR OUTLOADING AND REWAREHOUSING VARIOUS MATERIALS AT GSA'S VOORHEESVILLE DEPOT. THE PROCUREMENT WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS. BIDS WERE OPENED ON JANUARY 8. 404.55 WAS LOW. 021 WAS SECOND LOW. THAT YOU WERE ADVISED OF THIS ACTION ON THE SAME DATE. YOU WERE ADVISED BY SBA'S REGIONAL COUNSEL IN DETROIT THAT THE APPARENT LOW BIDDER QUALIFIED AS A SMALL BUSINESS CONCERN WITHIN THE SIZE STANDARD SET FORTH IN THE INVITATION. YOU WERE ALSO ADVISED THAT YOU HAD 5 DAYS IN WHICH TO APPEAL THE DECISION OF THE REGIONAL OFFICE TO SBA'S SIZE APPEALS BOARD.

B-163289, FEB. 28, 1968

BIDDERS - RESPONSIBILITY - SMALL BUSINESS DECISION TO WAGNER MOVING AND STORAGE CO., SECOND LOW BIDDER, DENYING PROTEST THAT SUCCESSFUL BIDDER, KENNEDY CONTRACTING CO. WAS NOT QUALIFIED SMALL BUSINESS CONCERN. PROTESTING BIDDER WHO DID NOT APPEAL SBA DETERMINATION THAT SUCCESSFUL BIDDER QUALIFIED UNDER SIZE STANDARD UNTIL 12 DAYS AFTER DETERMINATION WHEN UNDER FPR APPEALS MUST BE MADE WITHIN 5 DAYS, MUST HAVE CONTRACTING OFFICER'S SIZE DETERMINATION CONSIDERED FINAL AND PROTEST DENIED.

TO WAGNER MOVING AND STORAGE COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 10, 1968, AND LETTER OF JANUARY 22, 1968, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 2255-PMDS-NY, ISSUED ON DECEMBER 18, 1967, BY THE GENERAL SERVICES ADMINISTRATION, PROPERTY MANAGEMENT AND DISPOSAL SERVICE, NEW YORK, NEW YORK.

BIDS WERE REQUESTED FOR SERVICES FOR OUTLOADING AND REWAREHOUSING VARIOUS MATERIALS AT GSA'S VOORHEESVILLE DEPOT, NEW YORK, AND FOR UNLOADING AND STOWING OF VARIOUS MATERIALS AT GSA'S SCOTIA DEPOT, NEW YORK. THE PROCUREMENT WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS. BIDS WERE OPENED ON JANUARY 8, 1968, AND THE BID OF KENNEDY CONTRACTING COMPANY, INCORPORATED, IN THE AMOUNT OF $73,404.55 WAS LOW. YOUR BID IN THE AMOUNT OF $118,021 WAS SECOND LOW.

YOUR TELEGRAM OF JANUARY 10, 1968, PROTESTS AGAINST AN AWARD TO KENNEDY CONTRACTING COMPANY, INCORPORATED, ALLEGING THAT THIS BIDDER DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN. YOUR LETTER OF JANUARY 22, 1968 TO OUR OFFICE QUESTIONS WHETHER THE CONTRACTING OFFICER USED THE PROPER SIZE STANDARD IN THE INSTANT PROCUREMENT AND REQUESTS OUR OFFICE TO MAKE A FINDING IN THIS REGARD.

ON JANUARY 10, 1968, YOU ALSO PROTESTED THE SMALL BUSINESS STATUS OF THE LOW BIDDER TO THE CONTRACTING OFFICER. THE RECORD SHOWS THAT ON JANUARY 12, 1968, THE CONTRACTING OFFICER REFERRED THIS PROTEST TO THE REGIONAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION (SBA), DETROIT, MICHIGAN, AND THAT YOU WERE ADVISED OF THIS ACTION ON THE SAME DATE. ON JANUARY 22, 1968, YOU WERE ADVISED BY SBA'S REGIONAL COUNSEL IN DETROIT THAT THE APPARENT LOW BIDDER QUALIFIED AS A SMALL BUSINESS CONCERN WITHIN THE SIZE STANDARD SET FORTH IN THE INVITATION. YOU WERE ALSO ADVISED THAT YOU HAD 5 DAYS IN WHICH TO APPEAL THE DECISION OF THE REGIONAL OFFICE TO SBA'S SIZE APPEALS BOARD. THERE IS NO INDICATION THAT AN APPEAL OF THE REGIONAL OFFIC'S DECISION WAS FILED BY YOU.

FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-1.703-2/F) PROVIDES:

"/F) AN APPEAL FROM A SIZE DETERMINATION MADE BY AN SBA REGIONAL DIRECTOR MAY BE TAKEN BEFORE THE CLOSE OF BUSINESS ON THE 5TH WORKING DAY AFTER THE RECEIPT OF SUCH DECISION. UNLESS SUCH WRITTEN NOTICE OF APPEAL IS RECEIVED BY THE SBA SIZE APPEALS BOARD, WASHINGTON, D.C., WITHIN THIS TIME AND THE CONTRACTING OFFICER HAS BEEN NOTIFIED OF SUCH APPEAL PRIOR TO AWARD, THE APPELLANT WILL BE DEEMED TO HAVE WAIVED ITS RIGHTS OF APPEAL INSOFAR AS THE PENDING PROCUREMENT IS CERNED.' BASICALLY THE SAME PROVISION APPEARS IN 13 CODE OF FEDERAL REGULATIONS SEC. 121.3-6 (B) (3). SINCE AN APPEAL OF THE REGIONAL OFFICE'S DETERMINATION THAT KENNEDY CONTRACTING COMPANY QUALIFIED AS A SMALL BUSINESS CONCERN FOR THE INSTANT PROCUREMENT WAS NOT FILED WITHIN THE TIME STIPULATED BY THE ABOVE REGULATION, THE REGIONAL OFFICE'S DECISION IS CONSIDERED AS FINAL UNDER FPR SEC. 1-1.703-2 (D). CONSEQUENTLY, YOUR PROTEST THAT KENNEDY CONTRACTING COMPANY IS NOT A SMALL BUSINESS CONCERN IS DENIED.

WITH RESPECT TO THE QUESTION WHETHER THE CONTRACTING OFFICER USED THE PROPER SIZE STANDARD IN THE INSTANT INVITATION, FPR SEC.1-1.703-2 (H) PROVIDES:

"/H) AN APPEAL FROM A PRODUCT CLASSIFICATION DETERMINATION MADE BY A CONTRACTING OFFICER MAY BE TAKEN NOT LESS THAN 10 DAYS BEFORE THE BID OPENING DATE OR CLOSING DATE FOR THE SUBMISSION OF PROPOSALS WHEREIN THE BID OPENING OR CLOSING DATE IS MORE THAN 30 DAYS AFTER THE ISSUANCE OF THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS, OR NOT LESS THAN 5 WORKING DAYS BEFORE THE BID OPENING DATE OR CLOSING DATE FOR THE SUBMISSION OF PROPOSALS IN CASES WHEREIN THE BID OPENING DATE OR CLOSING DATE FOR THE SUBMISSION OF PROPOSALS IS 30 DAYS OR LESS AFTER THE ISSUANCE OF AN INVITATION FOR BIDS OR A REQUEST FOR PROPOSALS. SUCH APPEALS SHALL BE DIRECTED TO THE SBA SIZE APPEALS BOARD, WASHINGTON, D.C.' SUBSTANTIALLY THE SAME PROVISION ALSO APPEARS IN 13 CODE OF FEDERAL REGULATIONS SEC. 121.3-6 (B) (3) (II). SBA'S SIZE APPEALS BOARD HAS CONSTRUED THE ABOVE REGULATION AS APPLYING TO SIZE STANDARD DETERMINATIONS WHICH IN OUR VIEW IS A REASONABLE INTERPRETATION OF THIS REGULATION. APPARENTLY, YOU DID NOT DECIDE TO QUESTION THE CONTRACTING OFFICER'S SIZE STANDARD DETERMINATION UNTIL JANUARY 22, 1968, WHICH IS WELL BEYOND THE TIME PERMITTED FOR SUCH AN APPEAL BY THE ABOVE-QUOTED REGULATION. IN THESE CIRCUMSTANCES, THE CONTRACTING OFFICER'S SIZE STANDARD DETERMINATION IS FINAL UNDER 13 CODE OF FEDERAL REGULATIONS SEC. 121.3-8. SEE ALSO FPR SEC. 1-1.703-2 (G). CONSEQUENTLY, YOUR PROTEST AGAINST THE SIZE STANDARD IN THE INSTANT INVITATION IS DENIED.

SBA HAS ADVISED THAT INFORMATION PRESENTLY IS BEING DEVELOPED WITH RESPECT TO THE PROPER SIZE STANDARD FOR PROCUREMENTS OF THIS TYPE.