B-167021, AUG. 19, 1969

B-167021, AUG. 19, 1969

BID PROTEST - SMALL BUSINESS SIZE DETERMINATION DECISION TO MANPOWER, INC. OF EL PASO DENYING PROTEST AGAINST AWARD FOR KITCHEN POLICE SERVICES TO ABC FOOD SERVICE INC., LOW BIDDER, ON BASIS THAT POTENTIAL SUCCESSFUL BIDDER WAS NOT SMALL BUSINESS. PROTESTANT WHO DID NOT APPEAL SMALL BUSINESS ADMINISTRATION DETERMINATION THAT LOW BIDDING FIRM WHO CERTIFIED ITSELF AS SMALL BUSINESS WAS SMALL BUSINESS MUST HAVE PROTEST AGAINST AWARD TO SUCH FIRM DENIED.

TO MANPOWER, INC., OF EL PASO:

REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 21, 1969, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO ABC FOOD SERVICE INC., UNDER INVITATION FOR BIDS NO. DABD07-69-B-0235, ISSUED BY THE U.S. ARMY AIR DEFENSE CENTER, FORT BLISS, TEXAS.

THE INVITATION, DATED APRIL 16, 1969, SOLICITED BIDS UNER A 100 PERCENT SMALL-BUSINESS SET ASIDE FOR FURNISHING KITCHEN POLICE SERVICES AT FORT BLISS, TEXAS, AND MCGREGOR RANGE CAMP, NEW MEXICO, FROM JULY 1, 1969, THROUGH JUNE 30, 1970. PARAGRAPH (B) ON PAGE 8 OF THE INVITATION, ENTITLED NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE, ADVISED PROSPECTIVE BIDDERS, IN PART, THAT: "FOR THE PURPOSE OF THIS PROCUREMENT A SMALL BUSINESS CONCERN IS A CONCERN THE ANNUAL RECEIPTS OF WHICH, TOGETHER WITH ITS AFFILIATES, HAVE NOT EXCEEDED $3,000,000 FOR THE PRECEDING THREE FISCAL YEARS.'

BIDS WERE RECEIVED AND OPENED ON MAY 20, 1969. IT APPEARED THAT ABC FOOD SERVICE SUBMITTED THE LOWEST BID AS A SELF-CERTIFIED SMALL BUSINESS CONCERN. BY TELEGRAM OF MAY 21, 1969, YOU PROTESTED ON THE GROUND THAT "* * * THE COMBINED SALES OF ABC AND ITS AFFILIATED INTERESTS INCLUDING MILITARY BASE MANAGEMENT, INC., EXCEEDS THE SMALL BUSINESS SIZE STANDARDS FOR THIS PROCUREMENT.'

THEREAFTER, ON MAY 23, 1969, THE CONTRACTING OFFICER TRANSMITTED YOUR TELEGRAPHIC PROTEST TO THE REGIONAL OFFICE, SMALL BUSINESS ADMINISTRATION (SBA), LUBBOCK, TEXAS, FOR A SIZE DETERMINATION OF ABC FOOD SERVICES, INC.

ON JUNE 9, 1969, BY LETTER ADDRESSED TO THE CONTRACTING OFFICER, AT FORT BLISS, TEXAS, THE SBA REGIONAL DIRECTOR CONCLUDED THAT ABC FOOD SERVICE, INC., WAS A SMALL BUSINESS FOR THE PURPOSE OF THIS PROCUREMENT. APPEARS THAT A COPY OF THIS LETTER WAS MAILED TO YOU ADVISING THAT A PARTY ADVERSELY AFFECTED BY THIS DECISION MAY APPEAL TO THE CHAIRMAN, SIZE APPEALS BOARD, WASHINGTON, C., IN ACCORDANCE WITH SMALL BUSINESS SIZE STANDARDS REGULATION, PARAGRAPH 121.3-6. APPARENTLY NO SUCH APPEAL WAS MADE.

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. SEE 46 COMP. GEN. 898, AND 44 COMP. GEN. 271. MOREOVER, AS WE STATED IN B-164796, JULY 18, 1968: "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 * * *.' SEE AMERICAN ELECTRIC COMPANY LTD, V U.S., 270 F.SUPP. 689 (1967); SPRINGFIELD WHITE CASTLE COMPANY V EUGENE P. FOLEY, 230 F.SUPP. 77 (1964). IN THIS REGARD, IT APPEARS THAT THE ONLY RECOURSE AVAILABLE TO YOU FOR REVIEW OF THE SIZE DETERMINATION MADE BY THE SBA REGIONAL DIRECTOR WAS AN APPEAL TO THE SBA SIZE APPEALS BOARD IN ACCORDANCE WITH ASPR 1-703 (B) (4) BEFORE THE CLOSE OF BUSINESS ON THE FIFTH WORKING DAY AFTER THE RECEIPT OF SUCH DECISION.

ACCORDINGLY, NO PROPER BASIS IS PRESENTED FOR OBJECTION BY OUR OFFICE TO THE PROPOSED AWARD TO ABC FOOD SERVICES INC., UNDER THIS PROCUREMENT.