B-171339, MAR 1, 1971

B-171339: Mar 1, 1971

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WHERE A PROTEST WAS LODGED QUESTIONING THE SMALL BUSINESS STATUS OF A FIRM 20 DAYS AFTER BID OPENING. THE PROTEST WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN FUTURE PROCUREMENTS AND THE ADMINISTRATION DETERMINED THAT SUCCESSFUL BIDDER DID IN FACT QUALIFY AS A SMALL BUSINESS CONCERN. THERE IS NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION IN MAKING AWARD. TO ATLAS SAFETY EQUIPMENT COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD OF A CONTRACT TO KINGS POINT MANUFACTURING COMPANY. WERE OPENED ON OCTOBER 30. CERTIFIED THAT IT WAS A SMALL BUSINESS FIRM. IT IS REPORTED THAT ON NOVEMBER 19. THAT YOU EXPRESSED SURPRISE THAT KINGS POINT WAS MAKING THE STRAPS AND BELTS INVOLVED AND THAT IT WAS A SMALL BUSINESS FIRM.

B-171339, MAR 1, 1971

BID PROTEST - SMALL BUSINESS STATUS DECISION DENYING PROTEST AGAINST CONTRACT FOR INDUSTRIAL SAFETY STRAPS ISSUED BY THE EDGEWOOD ARSENAL, AND AWARD TO KINGS POINT MANUFACTURING COMPANY, INC. WHERE A PROTEST WAS LODGED QUESTIONING THE SMALL BUSINESS STATUS OF A FIRM 20 DAYS AFTER BID OPENING, IT CANNOT BE CONSIDERED ON THE INSTANT PROCUREMENT DUE TO THE FIVE DAY PERIOD OF LIMITATION PRESCRIBED BY ASPR 1- 703. HOWEVER, THE PROTEST WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN FUTURE PROCUREMENTS AND THE ADMINISTRATION DETERMINED THAT SUCCESSFUL BIDDER DID IN FACT QUALIFY AS A SMALL BUSINESS CONCERN. THEREFORE, THERE IS NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION IN MAKING AWARD.

TO ATLAS SAFETY EQUIPMENT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD OF A CONTRACT TO KINGS POINT MANUFACTURING COMPANY, INCORPORATED, BY THE EDGEWOOD ARSENAL, EDGEWOOD, MARYLAND, UNDER INVITATION FOR BIDS NO. DAAA15 -71-B-0115, ISSUED SEPTEMBER 17, 1970, FOR A VARIETY OF INDUSTRIAL SAFETY STRAPS.

THE BIDS UNDER THE INVITATION, A TOTAL SMALL BUSINESS SET-ASIDE, WERE OPENED ON OCTOBER 30, 1970. THE LOW BIDDER, KINGS POINT, UNDER THE CERTIFICATION AND REPRESENTATIONS PORTION OF THE BID FORM (PAGE 2, STANDARD FORM 33), CERTIFIED THAT IT WAS A SMALL BUSINESS FIRM.

IT IS REPORTED THAT ON NOVEMBER 19, 1970, YOU CALLED THE CONTRACT SPECIALIST CONCERNING THE STATUS OF THE PROCUREMENT, THE BID PRICES, AND THE BIDDERS INVOLVED; THAT YOU EXPRESSED SURPRISE THAT KINGS POINT WAS MAKING THE STRAPS AND BELTS INVOLVED AND THAT IT WAS A SMALL BUSINESS FIRM. YOU WERE ADVISED THAT THE ARSENAL'S RECORDS INDICATED THAT KINGS POINT WAS A SMALL BUSINESS FIRM AND THEY HAD SO CERTIFIED IN THEIR BID.

THE AWARD WAS MADE TO KINGS POINT ON NOVEMBER 20, 1970. LATER IN THE DAY, A TELEGRAM WAS RECEIVED FROM YOU PROTESTING AN AWARD TO KINGS POINT ON THE BASIS IT WAS NOT A SMALL BUSINESS FIRM. THE TELEGRAM WAS CONFIRMED BY LETTER DATED NOVEMBER 20, 1970, WHEREIN IT WAS STATED THAT KINGS POINT WAS NOT A SMALL BUSINESS FIRM AS DEFINED IN PARAGRAPH 22 OF SECTION C OF THE INVITATION, BECAUSE ITS EMPLOYMENT HAD RISEN ABOVE 500 PERSONS AND ITS AVERAGE ANNUAL RECEIPTS FOR THE PRECEDING THREE FISCAL YEARS EXCEEDED $7,500,000.

UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703 A CONTRACTING OFFICER IS REQUIRED TO ACCEPT AT FACE VALUE FOR THE PARTICULAR PROCUREMENT INVOLVED A CERTIFICATION BY THE BIDDER THAT IT IS A SMALL BUSINESS CONCERN UNLESS A WRITTEN PROTEST IS RECEIVED FROM ANOTHER BIDDER CONCERNING THE SIZE STATUS OF THE APPARENTLY SUCCESSFUL BIDDER OR THE CONTRACTING OFFICER QUESTIONS THE SMALL BUSINESS STATUS OF THE BIDDER AND SUBMITS THE QUESTION TO THE SMALL BUSINESS ADMINISTRATION FOR DETERMINATION. THE REGULATION ALSO PROVIDES THAT A SIZE PROTEST WILL BE CONSIDERED TIMELY ONLY IF IT IS SUBMITTED TO THE CONTRACTING OFFICER PRIOR TO THE FIFTH DAY, EXCLUSIVE OF SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS, AFTER BID OPENING. WHERE A SIZE PROTEST IS NOT TIMELY OR IS RECEIVED AFTER AWARD, THE REGULATION PROVIDES THAT THE PROTESTING BIDDER IS TO BE INFORMED THAT HIS PROTEST CANNOT BE CONSIDERED ON THE INSTANT PROCUREMENT BUT HAS BEEN SENT TO THE SBA FOR ITS CONSIDERATION IN ANY FUTURE PROCUREMENTS.

SINCE YOUR PROTEST WAS NOT RECEIVED WITHIN THE TIME PRESCRIBED BY THE REGULATION TO WARRANT CONSIDERATION UNDER THE INSTANT PROCUREMENT, IT WAS FORWARDED TO THE SBA FOR CONSIDERATION IN FUTURE PROCUREMENTS. THE NEW YORK AREA OFFICE OF THE SBA BY LETTER OF JANUARY 4, 1971, A COPY OF WHICH WAS SENT TO YOU, DETERMINED THAT KINGS POINT, INCLUDING ALL ITS AFFILIATES, HAD AN AVERAGE OF LESS THAN 500 EMPLOYEES FOR THE LAST FOUR QUARTERS AND, THEREFORE, KINGS POINT QUALIFIES AS A SMALL BUSINESS CONCERN UNDER THE SIZE STANDARD APPLICABLE TO THE INSTANT PROCUREMENT WHICH IS SET OUT AT PARAGRAPH 27 OF SECTION C OF THE SOLICITATION. AS STATED IN PARAGRAPH 22(B), SECTION C (PAGE 8) OF THE SOLICITATION, THE CEILING OF $7,500,000 IN AVERAGE ANNUAL RECEIPTS FOR THE PRECEDING THREE FISCAL YEARS IS APPLICABLE ONLY WHERE THE PROCUREMENT IS FOR CONSTRUCTION, ALTERATION, OR REPAIR (INCLUDING PAINTING AND DECORATING) OF BUILDINGS, BRIDGES, ROADS, OR OTHER REAL PROPERTY.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN AWARDING THE CONTRACT INVOLVED TO KINGS POINT MANUFACTURING COMPANY, INCORPORATED.