B-170746, SEP. 11, 1970

B-170746: Sep 11, 1970

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COURT DETERMINED THAT SBA DETERMINATION THAT CAMPBELL WAS A SMALL BUSINESS WAS ERRONEOUS AS MATTER OF LAW AND SHOULD BE SET ASIDE. WHILE ORDER IS SUBJECT TO APPEAL UNTIL SUCH TIME AS IT IS REVERSED IT IS BINDING AND NOT SUBJECT TO REVIEW BY GAO. REINSTATEMENT IS NOT POSSIBLE. CAMPBELL WAS GIVEN NOTICE OF AWARD OF CONTRACT NO. THE COURT HELD IN A MEMORANDUM OPINION THAT THE SMALL BUSINESS ADMINISTRATION'S DETERMINATION OF CAMPBELL AS A SMALL BUSINESS CONCERN WAS ERRONEOUS AS A MATTER OF LAW AND SHOULD BE SET ASIDE. WHILE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT IS SUBJECT TO APPEAL.

B-170746, SEP. 11, 1970

BID PROTEST -- SBA SIZE DETERMINATION -- COURT ACTION DETERMINATION THAT CONTRACT BETWEEN ALLEN CAMPBELL COMPANY AND EGLIN AIR FORCE BASE, FLA., MAY NOT BE REINSTATED IN VIEW OF RESTRAINING ORDER ISSUED BY U.S. DISTRICT COURT FOR NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION, CIVIL ACTION NO. 70-426, IN CASE BROUGHT BY SECOND LOW BIDDER, LLOYD WOOD CONSTRUCTION COMPANY, INC. COURT DETERMINED THAT SBA DETERMINATION THAT CAMPBELL WAS A SMALL BUSINESS WAS ERRONEOUS AS MATTER OF LAW AND SHOULD BE SET ASIDE. WHILE ORDER IS SUBJECT TO APPEAL UNTIL SUCH TIME AS IT IS REVERSED IT IS BINDING AND NOT SUBJECT TO REVIEW BY GAO. HENCE, REINSTATEMENT IS NOT POSSIBLE.

TO SMITH, CURRIE AND HANCOCK:

THIS CONCERNS YOUR LETTER OF SEPTEMBER 4, 1970, REQUESTING THIS OFFICE TO REINSTATE CONTRACT NO. F08651-70-C-0420 FORWARDED TO YOUR CLIENT, ALLEN M. CAMPBELL COMPANY, BY EGLIN AIR FORCE BASE, FLORIDA, AND DIRECT THE AIR FORCE TO WITHHOLD AWARD TO ANY OTHER COMPANY PENDING THE APPEAL OF THE DECISION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA, WESTERN DIVISION, CIVIL ACTION NO. 70-426, ON AUGUST 13, 1970.

CAMPBELL WAS GIVEN NOTICE OF AWARD OF CONTRACT NO. FO8651-70-C-0420 ON JUNE 15, 1970, UNDER A SMALL BUSINESS SET-ASIDE, SUBSEQUENT TO A RULING BY SMALL BUSINESS ADMINISTRATION SIZE APPEALS BOARD THAT YOUR CLIENT QUALIFIED AS A SMALL BUSINESS CONCERN. THE NEXT LOW BIDDER, LLOYD WOOD CONSTRUCTION COMPANY, INCORPORATED, FILED AN ACTION IN THE FEDERAL DISTRICT COURT AND THE COURT ENTERED A TEMPORARY RESTRAINING ORDER AGAINST THE EXECUTION OF THE CONTRACT WITH CAMPBELL. ON AUGUST 13, 1970, THE COURT HELD IN A MEMORANDUM OPINION THAT THE SMALL BUSINESS ADMINISTRATION'S DETERMINATION OF CAMPBELL AS A SMALL BUSINESS CONCERN WAS ERRONEOUS AS A MATTER OF LAW AND SHOULD BE SET ASIDE.

WHILE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT IS SUBJECT TO APPEAL, UNTIL SUCH TIME AS THAT DECISION MAY BE REVERSED WE MUST CONSIDER IT BINDING AND NOT SUBJECT TO REVIEW BY OUR OFFICE. UNDER THE CIRCUMSTANCES, WE CANNOT DIRECT THE AIR FORCE TO EITHER REINSTATE YOUR CLIENT'S CONTRACT AT THIS TIME OR TO WITHHOLD AWARD FOR THIS URGENT PROCUREMENT PENDING YOUR APPEAL OF THE DISTRICT COURT'S ORDER.