B-166633, JUL. 2, 1969

B-166633: Jul 2, 1969

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 9. WHICHEVER IS LATER. SIX BIDS WERE RECEIVED AND OPENED ON APRIL 8. THE LOWEST BID WAS SUBMITTED BY EXPORT PACKING AND CRATING CO. YOU PROTESTED AGAINST AN AWARD TO EXPORT PACKING ON THE BASIS THAT IT WAS NOT QUALIFIED FOR AWARD BECAUSE OF ITS DOLLAR VOLUME OF BUSINESS AND SINCE IT WAS DOMINANT IN ITS FIELD. A COPY OF YOUR PROTEST WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE IN NEW YORK. THE RECORD FURTHER INDICATES THAT THE DETERMINATION OF THE SBA REGIONAL OFFICE AS TO THE SIZE OF EXPORT PACKING WAS SUSTAINED BY THE SBA SIZE APPEALS BOARD ON MAY 29. GSA INFORMALLY ADVISED OUR OFFICE THAT IT WAS PROCEEDING WITH THE AWARD OF A CONTRACT TO EXPORT PACKING FOR THE REQUIRED EXPORT PACKING BECAUSE THE LAST EXPORT PACKING CONTRACT HAD EXPIRED ON APRIL 30.

B-166633, JUL. 2, 1969

TO MIL-SPEC PACKAGING, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 9, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO A BIDDER OTHER THAN YOUR FIRM UNDER SOLICITATION FOR BIDS NO. NY-2LB-TC-2-478.2-69; ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, NEW YORK, NEW YORK.

THE SOLICITATION, ISSUED ON MARCH 14, 1969, REQUESTED BIDS FOR AN INDEFINITE QUANTITY CONTRACT FOR EXPORT PACKING FOR THE PERIOD MAY 1, 1969, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH APRIL 30, 1970. THE SOLICITATION CONTAINED A NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE APPLICABLE TO ALL ITEMS.

SIX BIDS WERE RECEIVED AND OPENED ON APRIL 8, 1969. THE LOWEST BID WAS SUBMITTED BY EXPORT PACKING AND CRATING CO., INC., WHICH HAD CERTIFIED ITSELF TO BE A SMALL BUSINESS FIRM.

IN A TELEGRAM DATED APRIL 8, 1969, ADDRESSED TO THE CONTRACTING OFFICE, YOU PROTESTED AGAINST AN AWARD TO EXPORT PACKING ON THE BASIS THAT IT WAS NOT QUALIFIED FOR AWARD BECAUSE OF ITS DOLLAR VOLUME OF BUSINESS AND SINCE IT WAS DOMINANT IN ITS FIELD. ON APRIL 10, 1969, A COPY OF YOUR PROTEST WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE IN NEW YORK, NEW YORK. AFTER RECEIVING ADDITIONAL EVIDENCE FROM YOUR FIRM, THE SBA REGIONAL OFFICE ADVISED THE CONTRACTING OFFICE BY LETTER DATED APRIL 28, 1969, THAT EXPORT PACKING QUALIFIES AS A SMALL BUSINESS FOR THE PROCUREMENT IN QUESTION. BY LETTER OF THE SAME DATE THE SBA ALSO ADVISED YOUR FIRM OF THAT DETERMINATION. THE RECORD FURTHER INDICATES THAT THE DETERMINATION OF THE SBA REGIONAL OFFICE AS TO THE SIZE OF EXPORT PACKING WAS SUSTAINED BY THE SBA SIZE APPEALS BOARD ON MAY 29, 1969. THE SAME DATE, GSA INFORMALLY ADVISED OUR OFFICE THAT IT WAS PROCEEDING WITH THE AWARD OF A CONTRACT TO EXPORT PACKING FOR THE REQUIRED EXPORT PACKING BECAUSE THE LAST EXPORT PACKING CONTRACT HAD EXPIRED ON APRIL 30, 1969, AND THE NEED FOR SUCH SERVICES WAS URGENT.

UNDER 15 U.S.C. 637 (B) (6), A DECISION OF THE SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS CONCLUSIVE UPON THE PROCUREMENT AGENCY INVOLVED. 46 COMP. GEN. 898, 900; 44 ID. 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).

ACCORDINGLY, SINCE THE DECISION OF SBA REGARDING THE SIZE STATUS OF A COMPANY, BY STATUTE, IS ,CONCLUSIVE," WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.