B-167269-2, SEP. 26, 1969

B-167269-2: Sep 26, 1969

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SANDOVAL: REFERENCE IS MADE TO OUR LETTER OF JULY 16. THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO THE COMPANY DENYING ITS PROTEST. THERE APPEARS TO HAVE BEEN LACK OF COMMUNICATION WITH THE PROTESTANT NOT CONTEMPLATED BY THE APPLICABLE REGULATIONS. 13 CFR 121.3-5 (C) PRESCRIBES THAT AFTER A FORMAL SIZE DETERMINATION IS MADE. ATTENTION IS ALSO INVITED TO 13 CFR 121.3-6. OR THE RIGHT TO APPEAL IS WAIVED. BECAUSE AUTOMATIC WAS NOT NOTIFIED OF THE AREA ADMINISTRATOR'S DECISION.

B-167269-2, SEP. 26, 1969

BID PROTEST - SMALL BUSINESS SIZE LETTER TO ADMINISTRATOR OF SMALL BUSINESS ADMINISTRATION CONCERNING PROCEDURAL DEFICIENCIES IN FAILING TO COMMUNICATE WITH FIRM PROTESTING SIZE DETERMINATION. ALSO SIZE APPEALS BOARD CONSIDERATION DID NOT CORRECT IRREGULARITIES. MEASURES SHOULD BE TAKEN TO PREVENT RECURRENCE OF DEFICIENCIES.

TO MR. SANDOVAL:

REFERENCE IS MADE TO OUR LETTER OF JULY 16, 1969, AND THE REPLY OF LEONARD S. ZARTMAN, GENERAL COUNSEL, CONCERNING THE PROTEST OF THE AUTOMATIC MAINTENANCE AND SPRINKLER CORPORATION AGAINST THE SMALL BUSINESS STATUS OF TWO LOW BIDDERS UNDER INVITATION FOR BIDS NO. N62464 67-B-0282, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO THE COMPANY DENYING ITS PROTEST, TOGETHER WITH A COPY OF OUR LETTER TO THE SECRETARY OF THE NAVY. THROUGHOUT THE ENTIRE COURSE OF EVENTS, FROM THE TIMELY PROTEST OF SMALL BUSINESS STATUS OF THE TWO LOW BIDDERS FILED BY AUTOMATIC WITH THE CONTRACTING OFFICER, THERE APPEARS TO HAVE BEEN LACK OF COMMUNICATION WITH THE PROTESTANT NOT CONTEMPLATED BY THE APPLICABLE REGULATIONS. ALTHOUGH, ADMITTEDLY, THE PROTESTANT DID NOT COMPLY WITH 13 CODE OF FEDERAL REGULATIONS (CFR) 121.3-2 (T) IN THAT IT FAILED TO FURNISH SPECIFIC AND DETAILED EVIDENCE WITH ITS PROTEST, 13 CFR 121.3-5 (C) PRESCRIBES THAT AFTER A FORMAL SIZE DETERMINATION IS MADE, THE PROTESTANT SHALL BE SO NOTIFIED WITHIN 10 WORKING DAYS IF POSSIBLE. ATTENTION IS ALSO INVITED TO 13 CFR 121.3-6, INVOLVING APPEALS TO THE SIZE APPEALS BOARD, PROVIDING THAT AN APPEAL BY A BIDDER PROTESTING THE SMALL BUSINESS STATUS OF ANOTHER BIDDER IN A PENDING PROCUREMENT MUST BE TAKEN WITHIN 5 DAYS AFTER RECEIPT OF THE DECISION OF THE AREA ADMINISTRATOR, OR THE RIGHT TO APPEAL IS WAIVED. APPARENTLY, THE SIZE APPEALS BOARD CONSIDERED AUTOMATIC'S APPEAL, BECAUSE AUTOMATIC WAS NOT NOTIFIED OF THE AREA ADMINISTRATOR'S DECISION. IN ADDITION, THE BOARD STATED THAT ASSUMING THE OCCURRENCE OF PROCEDURAL IRREGULARITIES, THE DEFICIENCIES HAD BEEN CORRECTED BY THE BOARD'S CONSIDERATION OF THE APPEAL ON ITS MERITS. HOWEVER, WE BELIEVE THAT THE CONSIDERATION OF THE APPEAL ON ITS MERITS DID NOT RECTIFY THE IRREGULARITIES, AND WE RECOMMEND THAT APPROPRIATE MEASURES BE TAKEN TO AVOID A RECURRENCE OF THESE CIRCUMSTANCES IN THE FUTURE.