B-168576(1), APR 28, 1971

B-168576(1): Apr 28, 1971

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THE REDUCTION IN JET FUEL REQUIREMENTS IS PERMISSIBLE UNDER THE SPECIAL INSTRUCTIONS AND CONDITIONS PARAGRAPH BY WHICH THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED. TO POWERINE OIL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. THIS MATTER IS FULLY DISCUSSED IN OUR DECISION OF TODAY TO U.S. ARE EQUALLY APPLICABLE TO THE QUESTION YOU HAVE RAISED. WE DO NOT FEEL THAT ANY FURTHER DISCUSSION OF THAT ASPECT OF YOUR PROTEST IS NECESSARY. THE ONLY QUESTION REMAINING TO BE ANSWERED IS WHETHER DFSC ACTED IMPROPERLY BY MAKING AN AWARD TO GOLDEN EAGLE PRIOR TO RECEIPT OF A DETERMINATION OF GOLDEN EAGLE'S ELIGIBILITY AS A SMALL BUSINESS CONCERN FROM THE SIZE APPEALS BOARD OF THE SMALL BUSINESS ADMINISTRATION (SBA).

B-168576(1), APR 28, 1971

BID PROTEST - SMALL BUSINESS SET ASIDE - QUANTITY REDUCTION DENYING PROTEST OF POWERLINE OIL COMPANY AGAINST THE REDUCTION BY DEFENSE FUEL SUPPLY CENTER OF THE SMALL BUSINESS SET-ASIDES SUBSEQUENT TO BID OPENING UNDER AN IFB ISSUED FOR THE PROCUREMENT OF JET FUEL. THE REDUCTION IN JET FUEL REQUIREMENTS IS PERMISSIBLE UNDER THE SPECIAL INSTRUCTIONS AND CONDITIONS PARAGRAPH BY WHICH THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED.

TO POWERINE OIL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1969, TO THE DEFENSE FUEL SUPPLY CENTER (DFSC), PROTESTING AGAINST (1) THE SUBSTANTIAL REDUCTION BY DFSC OF THE SMALL BUSINESS SET-ASIDES SUBSEQUENT TO BID OPENING UNDER INVITATION FOR BIDS DSA600-70-B-0090, ISSUED FOR THE PROCUREMENT OF JP-5 JET FUEL REQUIREMENTS, AND (2) AWARDS UNDER THE SOLICITATION PRIOR TO A DETERMINATION OF THE SIZE STATUS OF GOLDEN EAGLE REFINING COMPANY (GOLDEN EAGLE).

IN REGARD TO THE REDUCTION BY DFSC OF THE SET-ASIDES SUBSEQUENT TO BID OPENING, THIS MATTER IS FULLY DISCUSSED IN OUR DECISION OF TODAY TO U.S. OIL AND REFINING COMPANY, B-168576(2), COPY ENCLOSED. SINCE WE BELIEVE OUR CONCLUSIONS, AS SET OUT IN THE ENCLOSURE, ARE EQUALLY APPLICABLE TO THE QUESTION YOU HAVE RAISED, WE DO NOT FEEL THAT ANY FURTHER DISCUSSION OF THAT ASPECT OF YOUR PROTEST IS NECESSARY.

THE ONLY QUESTION REMAINING TO BE ANSWERED IS WHETHER DFSC ACTED IMPROPERLY BY MAKING AN AWARD TO GOLDEN EAGLE PRIOR TO RECEIPT OF A DETERMINATION OF GOLDEN EAGLE'S ELIGIBILITY AS A SMALL BUSINESS CONCERN FROM THE SIZE APPEALS BOARD OF THE SMALL BUSINESS ADMINISTRATION (SBA). WE ARE ADVISED THAT THE SIZE APPEALS BOARD HAS NOW ISSUED ITS DECISION UPHOLDING THE EARLIER DETERMINATION BY THE LOS ANGELES REGIONAL OFFICE THAT GOLDEN EAGLE IS IN FACT A SMALL BUSINESS. SINCE THE DECISION OF SBA REGARDING SIZE STATUS OF A COMPANY IS MADE CONCLUSIVE BY STATUTE, NEITHER OUR OFFICE NOR THE PROCUREMENT ACTIVITY INVOLVED MAY IGNORE A DETERMINATION BY THE SBA AS TO THE SIZE STATUS OF A PARTICULAR CONCERN. -169607, JUNE 16, 1970; B-150757, APRIL 8, 1963; 15 U.S.C. 637(B)(6). ALSO, UNDER SECTION 1-703(3) OF THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR), WHERE AN APPEAL IS MADE TO THE SIZE APPEALS BOARD THE CONTRACTING OFFICER IS NOT REQUIRED TO SUSPEND AWARD IN ANY URGENT PROCUREMENT WHICH THE CONTRACTING OFFICER DETERMINES IN WRITING, AS IN THE PRESENT CASE, MUST BE AWARDED WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST. UNDER THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER ACTED IMPROPERLY BY AWARDING A CONTRACT TO GOLDEN EAGLE PRIOR TO RECEIPT OF THE SIZE DETERMINATION FROM THE SIZE APPEALS BOARD.

FOR THE ABOVE REASONS, AS WELL AS THOSE SET OUT IN OUR DECISION OF TODAY TO U.S. OIL AND REFINING COMPANY WHICH ARE APPLICABLE TO YOUR PROTEST, YOUR PROTEST MUST BE DENIED.