B-164796, JUL. 18, 1968

B-164796: Jul 18, 1968

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A DECISION OF SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS CONCLUSIVE UPON THE PROCUREMENT AGENCY INVOLVED. 46 COMP. ALTHOUGH YOU SUGGEST THAT THE CONTRACTS WERE AWARDED TO THE SECOND LOW RESPONSIVE RESPONSIBLE BIDDER BEFORE THE SBA SIZE DETERMINATION WAS MADE. IT SHOULD BE NOTED THAT AWARD WAS NOT MADE UNTIL JUNE 29. NO PROPER BASIS IS PRESENTED FOR QUESTIONING THE DECISION OF THE SBA SIZE APPEALS BOARD.

B-164796, JUL. 18, 1968

TO SCHAEFER, FITZGERALD AND LEVY:

WE ACKNOWLEDGE RECEIPT OF A LETTER, WITH ENCLOSURES, DATED JULY 3, 1968, SUBMITTED ON BEHALF OF STAVOLA CONTRACTING CO., INC. YOU REQUEST THAT OUR OFFICE REVIEW A DECISION RENDERED ON JUNE 28, 1968, BY THE SIZE APPEALS BOARD, SMALL BUSINESS ADMINISTRATION (SBA), WHICH DETERMINED THAT STAVOLA DID NOT QUALIFY AS A SMALL BUSINESS CONCERN FOR THE PROCUREMENT OF ROAD PAVING AND CONSTRUCTION UNDER INVITATION FOR BIDS NOS. DAAB-07-68-B-A251 AND DAAB-07-68-B-A294, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

UNDER 15 U.S.C. 637 (B) (6), A DECISION OF SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS CONCLUSIVE UPON THE PROCUREMENT AGENCY INVOLVED. 46 COMP. GEN. 898, 900; 44 COMP. GEN. 271, 273. MOREOVER, AS WE STATED IN B-150757, APRIL 8, 1963: "NEITHER OUR OFFICE NOR ANY EXECUTIVE AGENCY OF THE GOVERNMENT MAY IGNORE A DETERMINATION BY SBA AS TO THE SIZE STATUS OF A PARTICULAR CONCERN * * *.' CF. AMERICAN ELECTRIC COMPANY, LTD., V UNITED STATES, 270 F.SUPP. 689 (1967); SPRINGFIELD WHITE CASTLE COMPANY V EUGENE P. FOLEY, 230 F.SUPP. 77 (1964). IN THIS LATTER REGARD, ALTHOUGH YOU SUGGEST THAT THE CONTRACTS WERE AWARDED TO THE SECOND LOW RESPONSIVE RESPONSIBLE BIDDER BEFORE THE SBA SIZE DETERMINATION WAS MADE, IT SHOULD BE NOTED THAT AWARD WAS NOT MADE UNTIL JUNE 29, 1968, OR AFTER THE DETERMINATION OF SIZE.

ACCORDINGLY, NO PROPER BASIS IS PRESENTED FOR QUESTIONING THE DECISION OF THE SBA SIZE APPEALS BOARD.