B-166410, MAY 22, 1969

B-166410: May 22, 1969

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TO INGERSOLL-RAND COMPANY: REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED MARCH 11. BIDS WERE OPENED ON THE 100 PERCENT SMALL BUSINESS SET-ASIDE SOLICITATION. THERE WERE TWO BIDS ON ITEM 1. LISTED ITSELF AS A MANUFACTURER AND AS SMALL BUSINESS BUT THAT IT IS OFFERING A PRODUCT MANUFACTURED BY A LARGE BUSINESS. THE SMALL BUSINESS ADMINISTRATION DETERMINED THAT IT WAS A SMALL BUSINESS CONCERN AND THE "MANUFACTURER OF THE END ITEM REQUIRED BY THE SPECIFICATIONS IN SOLICITATION N00600-69-B-0060 INASMUCH AS THE PROCUREMENT REQUIRES A COMPLETED OPERATIONAL ASSEMBLY COMPOSED OF SEVERAL SEPARATE ELEMENTS.'. SBA IS AUTHORIZED TO DETERMINE WHICH FIRMS WITHIN ANY INDUSTRY ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT.

B-166410, MAY 22, 1969

TO INGERSOLL-RAND COMPANY:

REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM DATED MARCH 11, 1969, AGAINST AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY UNDER INVITATION FOR BIDS NO. N00600-69-B-0060, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

YOUR PROTEST PERTAINS ONLY TO THE PROCUREMENT OF ITEM 1, A VERTICAL TRIPLEX POWER DRIVEN PUMP. BIDS WERE OPENED ON THE 100 PERCENT SMALL BUSINESS SET-ASIDE SOLICITATION, ON NOVEMBER 26, 1968, AND THERE WERE TWO BIDS ON ITEM 1. COLLIFLOWER, INC., THE LOW BIDDER ON THIS ITEM REPRESENTED ITSELF TO BE A SMALL BUSINESS CONCERN AND THE PROCURING ACTIVITY RECOMMENDS THAT AWARD BE MADE TO THE CORPORATION AS THE LOW RESPONSIVE, RESPONSIBLE SMALL BUSINESS BIDDER.

YOU CONTEND THAT COLLIFLOWER, INC., LISTED ITSELF AS A MANUFACTURER AND AS SMALL BUSINESS BUT THAT IT IS OFFERING A PRODUCT MANUFACTURED BY A LARGE BUSINESS, KOBE INCORPORATED, AND THAT AWARD TO IT WOULD BE IMPROPER UNDER PARAGRAPH 1-706.5 (C) OF NAVY CONTRACT CLAUSE BOOK, EDITION TWO, DATED FEBRUARY 1, 1965, AND CODE OF FEDERAL REGULATIONS, TITLE 13, SECTION 121.3-8, WHICH PROVIDE THAT A MANUFACTURER OR REGULAR DEALER SUBMITTING A BID OR PROPOSAL IN ITS OWN NAME, IN ORDER TO QUALIFY AS A SMALL BUSINESS, MUST FURNISH END ITEMS MANUFACTURED BY SMALL BUSINESS CONCERNS.

UPON SUBMISSION OF THE QUESTION OF COLLIFLOWER'S STATUS BY THE PROCURING ACTIVITY, THE SMALL BUSINESS ADMINISTRATION DETERMINED THAT IT WAS A SMALL BUSINESS CONCERN AND THE "MANUFACTURER OF THE END ITEM REQUIRED BY THE SPECIFICATIONS IN SOLICITATION N00600-69-B-0060 INASMUCH AS THE PROCUREMENT REQUIRES A COMPLETED OPERATIONAL ASSEMBLY COMPOSED OF SEVERAL SEPARATE ELEMENTS.'

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 THE PURPOSE 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.'

ON THIS RECORD WE FIND NO LEGAL BASIS TO OBJECT TO AWARD OF THE CONTRACT TO COLLIFLOWER, INC., AND YOUR PROTEST IS THEREFORE DENIED.