B-167449, FEB. 26, 1970

B-167449: Feb 26, 1970

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ON BASIS THAT EXPORT WAS NOT SMALL BUSINESS. IT IS IMMATERIAL THAT PROTESTANT WAS UNABLE TO SUBMIT A SIMILAR TIMELY PROTEST UNDER ANOTHER PROCUREMENT. ALLEGATION THAT FORMER EMPLOYEE OF PROTESTANT DISCLOSED COMPANY'S PRICING DATA IS NOT A MATTER AFFECTING VALIDITY OF AWARD. W. JAMES KNOWLES: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 8. THESE PROCUREMENTS WERE SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION AND PROPOSALS WERE SOLICITED FOR SERVICES AND MATERIAL TO ACCOMPLISH CONSOLIDATION AND MOVEMENT OF FREIGHT IN THE OPERATION OF SHIPPING AND RECEIVING FOR THE ABOVE DEPOTS. WHICH PROVIDES THAT SUCH A CONCERN IS SMALL FOR PURPOSES OF BIDDING ON GOVERNMENT CONTRACTS FOR TRUCKING (LOCAL AND LONG DISTANCE).

B-167449, FEB. 26, 1970

BID PROTEST--SMALL BUSINESS CONCERN DECISION DENYING PROTEST OF TRANS OCEAN EXPORT PACKING, INC. AGAINST NEGOTIATED AWARD BY ARMY TO LOW OFFEROR, EXPORT PACKING AND CRATING, INC. ON BASIS THAT EXPORT WAS NOT SMALL BUSINESS. DETERMINATION BY SBA SIZE APPEALS BOARD THAT LOW OFFEROR QUALIFIES AS SMALL BUSINESS MUST BE ACCEPTED. IT IS IMMATERIAL THAT PROTESTANT WAS UNABLE TO SUBMIT A SIMILAR TIMELY PROTEST UNDER ANOTHER PROCUREMENT. ALLEGATION THAT FORMER EMPLOYEE OF PROTESTANT DISCLOSED COMPANY'S PRICING DATA IS NOT A MATTER AFFECTING VALIDITY OF AWARD.

TO MR. W. JAMES KNOWLES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 8, 1969, PROTESTING ON BEHALF OF TRANS OCEAN EXPORT PACKING, INCORPORATED, WITH RESPECT TO REQUESTS FOR PROPOSALS NO. DAAG 10-69-R-0458, ISSUED BY THE SHARPE ARMY DEPOT, LATHROP, CALIFORNIA, AND DAAG 36-69-R-0010, ISSUED BY THE NEW CUMBERLAND ARMY DEPOT, NEW CUMBERLAND, PENNSYLVANIA.

THESE PROCUREMENTS WERE SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION AND PROPOSALS WERE SOLICITED FOR SERVICES AND MATERIAL TO ACCOMPLISH CONSOLIDATION AND MOVEMENT OF FREIGHT IN THE OPERATION OF SHIPPING AND RECEIVING FOR THE ABOVE DEPOTS. THE REQUEST FOR PROPOSALS CONTAINED CLAUSES DEFINING A "SMALL BUSINESS CONCERN" AS ONE WHOSE ANNUAL RECEIPTS DID NOT EXCEED $3 MILLION, IN ACCORDANCE WITH SECTION 121.3-8 (F) (3) OF THE SMALL BUSINESS SIZE STANDARDS REGULATION, WHICH PROVIDES THAT SUCH A CONCERN IS SMALL FOR PURPOSES OF BIDDING ON GOVERNMENT CONTRACTS FOR TRUCKING (LOCAL AND LONG DISTANCE), WAREHOUSING, PACKING AND CRATING, AND/OR FREIGHT FORWARDING. EXPORT PACKING AND CRATING, INCORPORATED, (EXPORT) WAS DETERMINED TO BE THE LOW OFFEROR UNDER BOTH REQUESTS FOR PROPOSALS. NO TIMELY APPEAL WAS TAKEN UNDER THE SHARPE ARMY DEPOT REQUEST FOR PROPOSALS, ISSUED MAY 6, 1969, WITH CLOSING ON MAY 26, 1969, AND AWARD WAS MADE TO EXPORT ON JUNE 18, 1969. THE NEW CUMBERLAND ARMY DEPOT REQUEST FOR PROPOSALS WAS ISSUED ON APRIL 23, 1969, WITH FINAL CLOSING DATE JUNE 20, 1969.

THE CONTRACTING OFFICER'S ADMINISTRATIVE REPORT SHOWS THAT TRANS OCEAN EXPORT PACKING (TRANS OCEAN) TIMELY PROTESTED TO THE CONTRACTING OFFICER BY LETTER DATED JUNE 23, 1969, THAT EXPORT WAS NOT "SMALL BUSINESS" UNDER THE SIZE STANDARD AS PROVIDED IN THE NEW CUMBERLAND ARMY REQUEST FOR PROPOSALS, AND THEREFORE DID NOT QUALIFY AS AN OFFEROR. THE PROTEST WAS PROMPTLY SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR A DETERMINATION. ON JUNE 26, 1969, THE SMALL BUSINESS ADMINISTRATION (SBA) AREA ADMINISTRATOR DETERMINED THAT BY REASON OF A RULING DATED APRIL 28, 1969, THAT EXPORT QUALIFIED AS A SMALL BUSINESS CONCERN UNDER A GENERAL SERVICES ADMINISTRATION PROCUREMENT FOR WHICH THE SIZE STANDARD OF $3 MILLION IN ANNUAL SALES WAS USED AND SINCE THIS RULING WAS UPHELD BY THE SBA SIZE APPEALS BOARD ON MAY 29, 1969, THE DETERMINATION THAT EXPORT QUALIFIED AS A SMALL BUSINESS WAS STILL CONSIDERED VALID FOR THIS PROCUREMENT. TRANS OCEAN NOTIFIED THE CONTRACTING OFFICER, BY LETTER DATED JULY 2, 1969, THAT IT WOULD APPEAL THIS DETERMINATION TO THE SIZE APPEALS BOARD AND PRESENT EVIDENCE WHICH WOULD DISPROVE THE "SMALL BUSINESS" DETERMINATION. BASED ON THIS APPEAL AND THE PROTEST TO OUR OFFICE DATED JULY 8, 1969, THE CONTRACTING OFFICER HAS WITHHELD THE AWARD PENDING OUR DECISION.

WE HAVE NOW RECEIVED A COPY OF THE FINDINGS AND DECISION OF THE SBA SIZE APPEALS BOARD, DATED JANUARY 27, 1970, DENYING THE TRANS OCEAN APPEAL.

UNDER 15 U.S.C. 637 (B) (6), THE SMALL BUSINESS ADMINISTRATION IS AUTHORIZED TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS. THAT SECTION FURTHER PROVIDES THAT OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATIONS AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS.

SINCE THE SIZE APPEALS BOARD HAS RULED THAT EXPORT QUALIFIES AS SMALL BUSINESS, IT APPEARS TO BE IMMATERIAL THAT YOU WERE UNABLE TO SUBMIT A TIMELY PROTEST UNDER THE SHARPE ARMY DEPOT PROCUREMENT.

YOUR ALLEGATIONS WITH RESPECT TO THE ALLEGED ACTIVITIES OF A FORMER EMPLOYEE OF TRANS OCEAN IN DISCLOSING THAT COMPANY'S "PRICING DATA" IS NOT A MATTER WHICH AFFECTS THE VALIDITY OF THE AWARD.

ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT OUR OFFICE HAS A LEGAL BASIS UPON WHICH TO QUESTION THE AWARDS, AND YOUR PROTEST IS THEREFORE DENIED.