B-169381, MAY 27, 1970

B-169381: May 27, 1970

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CONCLUSIVENESS OF DETERMINATION WHERE SMALL BUSINESS ADMINISTRATION (SBA) SIZE APPEALS BOARD SUSTAINED DECISION OF SBA REGIONAL OFFICE THAT AWARDEE WAS "SMALL BUSINESS" FOR PURPOSES OF SUBJECT PROCUREMENT. 000 EMPLOYEE SIZE STANDARD GOVERNING PROCUREMENT WAS CLEARLY ERRONEOUS. PROTEST IS DENIED SINCE DECISION OF SBA REGARDING SIZE STATUS OF PARTICULAR CONCERN IS CONCLUSIVE UPON PROCUREMENT AGENCY INVOLVED UNDER 15 U.S.C. 637 (B) (6) AND IT MAY NOT BE IGNORED BY GAO. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 23 AND LETTERS OF MARCH 30 AND MAY 4. WAS BASED ON THE PROPRIETY OF THE PRODUCT CLASSIFICATION DESIGNATED IN THE RFP BY THE CONTRACTING OFFICER. KEY SYSTEMS WOULD NOT HAVE QUALIFIED AS AN ELIGIBLE SMALL BUSINESS CONCERN FOR AWARD OF THE CONTRACT.

B-169381, MAY 27, 1970

CONTRACTS--AWARDS--SMALL BUSINESS CONCERNS--SIZE--CONCLUSIVENESS OF DETERMINATION WHERE SMALL BUSINESS ADMINISTRATION (SBA) SIZE APPEALS BOARD SUSTAINED DECISION OF SBA REGIONAL OFFICE THAT AWARDEE WAS "SMALL BUSINESS" FOR PURPOSES OF SUBJECT PROCUREMENT, ALTHOUGH 1,000 EMPLOYEE SIZE STANDARD GOVERNING PROCUREMENT WAS CLEARLY ERRONEOUS, ON BASIS PROTESTANT HAD NOT FILED TIMELY APPEAL FROM PRODUCT CLASSIFICATION ADMINISTRATIVELY ASSIGNED, PROTEST IS DENIED SINCE DECISION OF SBA REGARDING SIZE STATUS OF PARTICULAR CONCERN IS CONCLUSIVE UPON PROCUREMENT AGENCY INVOLVED UNDER 15 U.S.C. 637 (B) (6) AND IT MAY NOT BE IGNORED BY GAO. SEE COMP. GEN. DECS. AND CT. CASES CITED.

TO TECHNICOM, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 23 AND LETTERS OF MARCH 30 AND MAY 4, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO KEY SYSTEMS, INC; UNDER REQUEST FOR PROPOSALS (RFP) NO. F04606-70-R-0238, ISSUED BY THE SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIFORNIA.

YOUR PROTEST AGAINST THE AWARD MADE TO KEY SYSTEMS, INC; WAS BASED ON THE PROPRIETY OF THE PRODUCT CLASSIFICATION DESIGNATED IN THE RFP BY THE CONTRACTING OFFICER. ESSENTIALLY, YOU CONTEND THAT IF A CORRECT PRODUCT CLASSIFICATION HAD BEEN DESIGNATED, KEY SYSTEMS WOULD NOT HAVE QUALIFIED AS AN ELIGIBLE SMALL BUSINESS CONCERN FOR AWARD OF THE CONTRACT. YOU PROTESTED THE DETERMINATION OF THE LOS ANGELES DISTRICT OFFICE OF THE SMALL BUSINESS ADMINISTRATION (SBA) THAT KEY SYSTEMS IS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF THE PROCUREMENT UNDER RFP 0238 TO BOTH THE SBA SIZE APPEALS BOARD AND TO OUR OFFICE.

WE HAVE BEEN ADVISED THAT THE SBA SIZE APPEALS BOARD BY DECISION DATED APRIL 24, 1970, DENIED YOUR APPEAL AND SUSTAINED THE DECISION OF THE SBA REGIONAL OFFICE THAT KEY SYSTEMS WAS PROPERLY CONSIDERED A "SMALL BUSINESS" FOR PURPOSES OF THE ABOVE PROCUREMENT. THE SIZE APPEALS BOARD DECISION, WHICH HAS BEEN FURNISHED TO YOU, STATED IN PERTINENT PART AS FOLLOWS:

"B. AFTER BIDS WERE OPENED TECHNICOM, INC; FILED AN UNTIMELY APPEAL CHALLENGING THE PROPRIETY OF THE PRODUCT CLASSIFICATION. THE DISTRICT OFFICE FOUND THAT KEY SYSTEMS, INC; QUALIFIED AS A SMALL BUSINESS CONCERN UNDER THE 1,000 EMPLOYEE SIZE STANDARD SET FORTH IN THE SOLICITATION. THEREAFTER, TECHNICOM, INC; APPEALED TO THE SIZE APPEALS BOARD TO REVIEW THE DISTRICT OFFICE DECISION ON GROUNDS THAT TECHNICOM, INC; IS NOT AN ELIGIBLE SMALL BUSINESS CONCERN UNDER THE APPROPRIATE SIZE STANDARD.

"C. SECTION 121.3-8 OF THE SMALL BUSINESS SIZE STANDARDS REGULATION PROVIDES IN PART THAT:

"'. . . THE DETERMINATION OF THE APPROPRIATE CLASSIFICATION OF A PRODUCT OR SERVICE SHALL BE MADE BY THE CONTRACTING OFFICER AND HIS DETERMINATION SHALL BE FINAL UNLESS APPEALED IN THE MANNER PROVIDED IN SECTION 121.3- 6.' THE APPEAL FROM THE PRODUCT CLASSIFICATION ASSIGNED BY THE CONTRACTING OFFICER WAS NOT TAKEN WITHIN 10 DAYS OF BID OPENING AS PRESCRIBED BY SECTION 121.3-6 OF THE SIZE REGULATION REFERENCED ABOVE. ACCORDINGLY, THE 1,000 EMPLOYEE SIZE STANDARD GOVERNS THIS PROCUREMENT EVEN THOUGH IT IS CLEARLY ERRONEOUS."

UNDER 15 U.S.C. 637 (B) (6), A DECISION OF THE SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS CONCLUSIVE UPON THE PROCUREMENT AGENCY INVOLVED. 46 COMP. GEN. 898, 900 (1967); 44 ID. 271, 273 (1964). MOREOVER, AS WE STATED IN B-150757, APRIL 8, 1963: "NEITHER OUR OFFICE NOR ANY EXECUTIVE AGENCY OF THE GOVERNMENT MAY IGNORE A DETERMINATION BY SBA AS TO THE SIZE STATUS OF A PARTICULAR CONCERN." AMERICAN ELECTRIC COMPANY, LTD. V. UNITED STATES, 270 F. SUPP. 689 (1967); SPRINGFIELD WHITE CASTLE COMPANY V. FOLEY, 230 F. SUPP. 77 (1964). SEE, ALSO, MIDWEST CONSTRUCTION, LTD. V. UNITED STATES, 387 F. 2D 957 (1967).

ACCORDINGLY, SINCE THE DECISION OF SBA REGARDING THE SIZE STATUS OF A COMPANY, BY STATUTE, IS "CONCLUSIVE," WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.