B-167179, AUG. 19, 1969

B-167179: Aug 19, 1969

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ON BASIS THAT FIRM IS NOT SMALL BUSINESS. A PROTEST THAT A LOW BIDDER WAS NOT A SMALL BUSINESS FIRM WHICH WAS NOT RECEIVED BY THE CONTRACTING OFFICER WITHIN 5 DAYS AFTER OPENING AS REQUIRED UNDER ASPR 1-703 (B) (1) (II) DOES NOT PROVIDE ANY BASIS FOR OBJECTION TO THE AWARD SINCE BURDEN OF QUESTIONING THE SELF CERTIFICATION FALLS ON THE BIDDERS TO TIMELY PROTEST. TO SCHAEVITZ ENGINEERING: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6. YOUR FIRM AND CELMAR MANUFACTURING CORPORATION (CELMAR) SUBMITTED LATE BIDS IN THAT THEY WERE NOT RECEIVED UNTIL 1:25 P.M. BOTH BIDS WERE FOUND TO BE ACCEPTABLE UNDER THE LATE BID PROCEDURE UNDER SECTION 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

B-167179, AUG. 19, 1969

BID PROTEST - SMALL BUSINESS STATUS DECISION DENYING PROTEST OF SCHAEVITZ ENGINEERING AGAINST AWARD FOR FURNISHING MINE SWEEPING CUTTERS FOR NAVAL ORDINANCE STATION TO CELMAR, A DIVISION OF INDUCTOTHERM, ON BASIS THAT FIRM IS NOT SMALL BUSINESS. A PROTEST THAT A LOW BIDDER WAS NOT A SMALL BUSINESS FIRM WHICH WAS NOT RECEIVED BY THE CONTRACTING OFFICER WITHIN 5 DAYS AFTER OPENING AS REQUIRED UNDER ASPR 1-703 (B) (1) (II) DOES NOT PROVIDE ANY BASIS FOR OBJECTION TO THE AWARD SINCE BURDEN OF QUESTIONING THE SELF CERTIFICATION FALLS ON THE BIDDERS TO TIMELY PROTEST.

TO SCHAEVITZ ENGINEERING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1969, ADDRESSED TO OUR OFFICE, FORWARDING A COPY OF YOUR LETTER OF MAY 20, 1969, ADDRESSED TO THE CHAIRMAN, SIZE APPEALS BOARD, SMALL BUSINESS ADMINISTRATION (SBA), PROTESTING AN AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. N00197 -69-B-0132, ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, ON MARCH 19, 1969.

THE SUBJECT INVITATION, A TOTAL SMALL BUSINESS SET-ASIDE, SOLICITED BIDS FOR FURNISHING 600 POWDER ACTUATED CUTTERS, MINE SWEEPING, MK 17 MOD 0. OF THE SIX FIRMS SOLICITED ONLY ONE, DEVAL CORPORATION (DEVAL) SUBMITTED A TIMELY BID ON APRIL 1, 1969, AT 10:30 A.M. (EST), THE TIME SET FOR OPENING. YOUR FIRM AND CELMAR MANUFACTURING CORPORATION (CELMAR) SUBMITTED LATE BIDS IN THAT THEY WERE NOT RECEIVED UNTIL 1:25 P.M. ON APRIL 1, 1969. HOWEVER, BOTH BIDS WERE FOUND TO BE ACCEPTABLE UNDER THE LATE BID PROCEDURE UNDER SECTION 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE LOWEST OF THE THREE BIDS WAS DEVAL, BUT IT WAS FOUND TO BE NONRESPONSIBLE DUE TO LACK OF CAPACITY. THE SBA WAS GIVEN AN OPPORTUNITY TO ISSUE A CERTIFICATE OF COMPETENCY (COC); HOWEVER, IT WAS NOT ISSUED BECAUSE DEVAL CHOSE NOT TO FILE AN APPLICATION FOR A COC. THE NEXT LOW BIDDER, CELMAR, CERTIFIED THAT IT WAS A SMALL BUSINESS, WHICH FOR THE PURPOSE OF THIS PROCUREMENT WAS AN EMPLOYMENT SIZE OF 500 EMPLOYEES. ACCORDINGLY, AN AWARD WAS MADE TO CELMAR ON MAY 20, 1969, AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

IN A LETTER OF MAY 6, 1969, YOU ADVISED THE CONTRACTING OFFICER IN PERTINENT PART "* * * WE HAVE REASON TO BELIEVE THAT THE NEXT LOWEST BIDDER (CELMAR, A DIVISION OF INDUCTOTHERM) DOES NOT MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION FOR BIDS FOR SMALL BUSINESS (I.E., LESS THAN 500 EMPLOYEES).' ON MAY 14, 1969, THE CONTRACTING OFFICER RESPONDED BY ADVISING: "YOUR LETTER OF PROTEST DATED 6 MAY 1969 AGAINST CELMAR * * * WAS NOT RECEIVED BY THE CONTRACTING OFFICER WITHIN FIVE (5) WORKING DAYS AFTER BID OPENING AND THEREFORE CANNOT BE CONSIDERED. THIS ACTION IS IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 1-703 (1) (II) (ASPR 1-703 (B) (1) ).'YOUR PROTEST, HOWEVER, HAS BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION * * * FOR ITS CONSIDERATION IN ANY FUTURE ACTIONS.'

INASMUCH AS YOUR PROTEST WAS DATED MAY 6, 1969, THE CONTRACTING OFFICER PROPERLY DETERMINED THAT IT WAS NOT RECEIVED WITHIN FIVE WORKING DAYS AFTER BID OPENING. HOWEVER, SINCE IT WAS RECEIVED BEFORE AWARD, THE CONTRACTING OFFICER FOLLOWED THE PROCEDURES OF ASPR 1-703 (B) (1) (II) WHICH PROVIDES:

"/II) UNTIMELY PROTESTS RECEIVED PRIOR TO AWARD - A PROTEST WHICH IS NOT TIMELY, EVEN THOUGH RECEIVED BEFORE AWARD, SHALL BE FORWARDED TO THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE SERVING THE AREA IN WHICH THE PROTESTED CONCERN IS LOCATED, WITH A NOTATION THEREON THAT THE PROTEST IS NOT TIMELY. THE PROTESTANT SHALL BE NOTIFIED THAT HIS PROTEST CANNOT BE CONSIDERED ON THE INSTANT PROCUREMENT BUT HAS BEEN REFERRED TO SBA FOR ITS CONSIDERATION IN ANY FUTURE ACTIONS; "

THE CITED PROVISIONS OF THE ASPR ARE IN ACCORD WITH THE REGULATIONS ISSUED BY THE SBA PRESCRIBING THE PROCEDURES TO BE EMPLOYED IN INVOKING ITS AUTHORITY TO DETERMINE THE SIZE STATUS OF BIDDERS ON GOVERNMENT PROCUREMENTS. SEE 13 CFR 121.3-5. SINCE SBA HAS STATUTORY AUTHORITY TO MAKE CONCLUSIVE DETERMINATIONS AS TO WHAT BUSINESSES ARE TO BE DESIGNATED AS "SMALL BUSINESS CONCERNS" (PUB. L. 85-536, SECT. 2 (8), AS AMENDED, 15 U.S.C. 637) AND THE ADMINISTRATOR IS AUTHORIZED TO MAKE SUCH RULES AND REGULATIONS AS HE DEEMS NECESSARY TO CARRY OUT THE AUTHORITY VESTED IN HIM, WE FIND NO LEGAL BASIS FOR OBJECTION BY THIS OFFICE TO THE PROCEDURE FOLLOWED IN HANDLING YOUR PROTEST. AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE QUESTIONED THE SMALL BUSINESS STATUS OF CELMAR SINCE THE AWARD TO IT HAD NOT BEEN MADE, HE STATES THAT NO EVIDENCE WAS FURNISHED IN YOUR PROTEST WHICH WOULD HAVE JUSTIFIED HIM IN RAISING THE QUESTION, SINCE HE WAS NOT IN A POSITION TO REPORT ANY SUPPORTING FACTS.

THE SELF-CERTIFICATION PROCEDURES EMPLOYED IN PROCUREMENTS SET ASIDE FOR SMALL BUSINESS WERE INTENDED TO SIMPLIFY AND EXPEDITE SIZE DETERMINATIONS AND THE PROCUREMENT PROCESSES. BECAUSE IT IS RECOGNIZED THAT ERRORS IN SMALL BUSINESS CERTIFICATIONS MAY OCCUR THE PROCEDURES FOR QUESTIONING THESE ARE SPELLED OUT IN THE REGULATIONS; AND OUR OFFICE IS NOT AUTHORIZED TO RELIEVE A BIDDER FROM THE CONSEQUENCES OF HIS FAILURE TO COMPLY WITH THEM. "WHERE BIDDERS HAVE INFORMATION RELATIVE TO ANOTHER BIDDER'S STATUS WHICH IS NOT KNOWN TO THE CONTRACTING AGENCY AND WHICH IS SUFFICIENT TO RAISE A REASONABLE DOUBT AS TO THE ACCURACY OF THE SELF-CERTIFICATION APPEARING IN THE BID, IT MUST BE CONCLUDED THAT THE BURDEN OF QUESTIONING THE SELF-CERTIFICATION FALLS UPON THE BIDDERS.' 46 COMP. GEN. 342, 345.