B-169133, MAY 14, 1970

B-169133: May 14, 1970

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AWARD PRIOR TO SIZE APPEAL FOLLOWING AWARD CONTRACTING OFFICER WAS ADVISED OF UNSUCCESSFUL BIDDER'S APPEAL OF SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE DECISION TO SIZE APPEALS BOARD. GENERAL SERVICES ADMINISTRATION DECLINED TO "STOP" CONTRACT PENDING APPEAL OUTCOME ON BASIS AWARD WAS MADE PURSUANT TO SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE DECISION THAT CONTRACTOR WAS SMALL BUSINESS AND THAT NO APPEAL TO THAT RULING HAD BEEN FILED PRIOR TO AWARD. AWARD ON BASIS OF SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE'S DETERMINATION IS CONSIDERED FINAL UNDER REGULATIONS AND GAO FINDS NO BASIS FOR CANCELLATION OF AWARD. TO PACKAGING PRODUCTS AND DESIGN CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 19.

B-169133, MAY 14, 1970

CONTRACTS--AWARDS--SMALL BUSINESS CONCERNS--AWARD PRIOR TO SIZE APPEAL FOLLOWING AWARD CONTRACTING OFFICER WAS ADVISED OF UNSUCCESSFUL BIDDER'S APPEAL OF SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE DECISION TO SIZE APPEALS BOARD, WASHINGTON. GENERAL SERVICES ADMINISTRATION DECLINED TO "STOP" CONTRACT PENDING APPEAL OUTCOME ON BASIS AWARD WAS MADE PURSUANT TO SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE DECISION THAT CONTRACTOR WAS SMALL BUSINESS AND THAT NO APPEAL TO THAT RULING HAD BEEN FILED PRIOR TO AWARD. WHILE APPEAL HAD BEEN FILED, CONTRACTING OFFICER HAD NOT BEEN NOTIFIED. AWARD ON BASIS OF SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE'S DETERMINATION IS CONSIDERED FINAL UNDER REGULATIONS AND GAO FINDS NO BASIS FOR CANCELLATION OF AWARD. SEE B-163289, FEB. 28, 1968 AND CT. CASE CITED.

TO PACKAGING PRODUCTS AND DESIGN CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 19, 1970, PROTESTING ANY CANCELLATION OF TWO TOTAL SMALL BUSINESS SET-ASIDE CONTRACTS AWARDED TO YOUR FIRM BY THE ATLANTA AND THE CHICAGO REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION (GSA), BECAUSE OF A RULING BY THE SMALL BUSINESS ADMINISTRATION (SBA) SIZE APPEALS BOARD THAT YOUR FIRM WAS NOT A SMALL BUSINESS CONCERN.

THE AWARD MADE BY THE ATLANTA REGIONAL OFFICE RESULTED FROM SOLICITATION NO. A-73052-A, ISSUED ON DECEMBER 3, 1969, FOR THREE ITEMS OF POLYETHYLENE PLASTIC BAGS. BIDS WERE OPENED ON DECEMBER 23, 1969, AND YOUR FIRM WAS LOW AS TO ITEM 3A FOR 6,000 BOXES (125 BAGS PER BOX) OF PLASTIC BAGS. LETTER OF DECEMBER 24, 1969, ONE OF THE OTHER BIDDERS, CHICAGO TRANSPARENT, INC. (CHICAGO), ADVISED THE REGIONAL OFFICE THAT IT WAS PROTESTING ANY AWARD TO YOUR FIRM, WHICH CHICAGO CLAIMED WAS A LARGE BUSINESS CONCERN.

AS A RESULT OF THIS ALLEGATION BY CHICAGO, THE QUESTION OF YOUR FIRM'S SIZE WAS REFERRED TO THE NEWARK, NEW JERSEY, SBA REGIONAL OFFICE. THAT OFFICE, BY LETTER DATED JANUARY 13, 1970, ADVISED GSA'S ATLANTA OFFICE THAT YOUR FIRM QUALIFIED AS A SMALL BUSINESS FOR THE PROCUREMENT IN QUESTION. ON JANUARY 22, 1970, YOU WERE ADVISED THAT YOUR FIRM HAD BEEN AWARDED A CONTRACT FOR ITEM 3A, AND ON THE FOLLOWING DAY A PURCHASE ORDER WAS ISSUED TO YOUR FIRM FOR THAT ITEM. ALTHOUGH CHICAGO APPEALED THE NEWARK SBA REGIONAL OFFICE DECISION TO THE SBA SIZE APPEALS BOARD IN WASHINGTON, D.C; ON JANUARY 19, 1970, IT WAS NOT UNTIL FEBRUARY 4, 1970, NINE WORKING DAYS AFTER AWARD TO YOUR FIRM, THAT THE CONTRACTING OFFICER WAS ADVISED OF THIS APPEAL. THE SIZE APPEALS BOARD RULED ON FEBRUARY 16, 1970, THAT YOUR FIRM WAS NOT A SMALL BUSINESS FOR THE PURPOSE OF THE PROCUREMENT INVOLVED IN THE PROTEST.

THE CONTRACT AWARDED YOUR FIRM BY THE GSA CHICAGO REGIONAL OFFICE RESULTED FROM INVITATION FOR BIDS (IFB) NO. C-692550-H, ISSUED ON DECEMBER 8, 1969, FOR SIX ITEMS OF POLYETHYLENE PLASTIC BAGS. WHEN THE BIDS WERE OPENED ON DECEMBER 30, 1969, YOUR FIRM WAS LOW AS TO ITEM 5. HOWEVER, AWARD WAS DELAYED PENDING THE RESOLUTION OF A PROTEST REGARDING THE SIZE STATUS OF YOUR FIRM LODGED BY CHICAGO IN CONNECTION WITH ANOTHER SOLICITATION (IFB C-684100-H) FOR PLASTIC BAGS. ON JANUARY 13, 1970, GSA'S REGIONAL OFFICE IN CHICAGO WAS ADVISED BY THE NEWARK REGIONAL SBA OFFICE THAT YOUR FIRM WAS A SMALL BUSINESS FIRM FOR PURPOSES OF IFB NO. C- 684100-H. NO REFERENCE WAS MADE TO IFB NO. C 692550-H. IN VIEW OF SUCH DETERMINATION, AWARD WAS MADE TO YOUR FIRM ON JANUARY 21, 1970, FOR ITEM 5. BY LETTER OF JANUARY 23, 1970, CHICAGO ADVISED GSA'S CHICAGO REGIONAL OFFICE THAT IT HAD APPEALED THE DECISION OF THE SBA REGIONAL OFFICE TO THE SBA SIZE APPEALS BOARD IN WASHINGTON, D.C; AND ON FEBRUARY 5, 1970, CHICAGO REQUESTED THAT THE CONTRACT AWARDED TO YOUR FIRM BE "STOPPED" UNTIL A DECISION WAS RENDERED IN CONNECTION WITH ITS APPEAL. GSA DECLINED TO INTERFERE WITH THE CONTRACT ON THE BASIS THAT THE AWARD WAS MADE PURSUANT TO THE RULING OF THE SBA REGIONAL OFFICE THAT YOUR FIRM WAS A SMALL BUSINESS CONCERN, AND NO APPEAL TO THAT RULING HAD BEEN FILED PRIOR TO THE AWARD. IT APPEARS, HOWEVER, THAT AN APPEAL HAD BEEN FILED WITH THE SBA SIZE APPEALS BOARD WITHIN FIVE WORKING DAYS AFTER RECEIPT OF THE REGIONAL OFFICE DECISION, BUT NOTICE THEREBY HAD NOT BEEN GIVEN TO THE CONTRACTING OFFICER. THE SBA SIZE APPEALS BOARD ADVISED THE CHICAGO REGIONAL OFFICE ON FEBRUARY 16, 1970, THAT CHICAGO'S APPEAL HAD BEEN SUSTAINED.

SECTION 1-1.703-2 (F) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) STATES:

"AN APPEAL FROM A SIZE DETERMINATION MADE BY AN SBA REGIONAL DIRECTOR MAY BE TAKEN BEFORE THE CLOSE OF BUSINESS ON THE 5TH WORKING DAY AFTER THE RECEIPT OF SUCH DECISION. UNLESS SUCH WRITTEN NOTICE OF APPEAL IS RECEIVED BY THE SBA SIZE APPEALS BOARD, WASHINGTON, D.C; WITHIN THIS TIME AND THE CONTRACTING OFFICER HAS BEEN NOTIFIED OF SUCH APPEAL PRIOR TO AWARD, THE APPELLANT WILL BE DEEMED TO HAVE WAIVED ITS RIGHTS OF APPEAL INSOFAR AS THE PENDING PROCUREMENT IS CONCERNED." ALSO, FPR SECTION 1- 1.703-2 (D) STATES:

"SBA WILL, WITHIN 10 WORKING DAYS, IF POSSIBLE, AFTER RECEIPT OF A PROTEST, INVESTIGATE AND DETERMINE THE SMALL BUSINESS STATUS OF THE PROTESTED BIDDER OR OFFEROR AND NOTIFY THE CONTRACTING OFFICER, THE PROTESTANT, AND THE PROTESTED BIDDER OR OFFEROR OF ITS DECISION. SUCH DECISION IS FINAL UNLESS APPEALED IN ACCORDANCE WITH PARAGRAPH (F) OF THIS SEC. 1-1.703-2 AND THE PROCURING ACTIVITY IS NOTIFIED OF THE APPEAL PRIOR TO AWARD. IF AN AWARD WAS MADE PRIOR TO THE TIME THE CONTRACTING OFFICER RECEIVES NOTICE OF THE APPEAL, THE CONTRACT SHALL BE PRESUMED TO BE VALID AND ANY DETERMINATION RENDERED SHALL BE CONSIDERED IN FUTURE PROCUREMENTS."

SINCE IN NEITHER PROCUREMENT WAS THE CONTRACTING OFFICER ADVISED PRIOR TO AWARD OF THE APPEAL OF THE REGIONAL OFFICE'S DETERMINATION THAT YOUR FIRM QUALIFIED AS A SMALL BUSINESS CONCERN, THE AWARDS MADE ON THE BASIS OF THAT DECISION ARE CONSIDERED AS FINAL FOR THE PROCUREMENTS INVOLVED UNDER THE ABOVE REGULATIONS. SEE B-163289, FEBRUARY 28, 1968; MID-WEST CONSTRUCTION, LTD. V. UNITED STATES, 181 CT. CL. 774 (1967).

ACCORDINGLY, WE FIND NO BASIS FOR CANCELLATION OF THE AWARDS TO YOUR FIRM.