B-173301, JUN 28, 1972

B-173301: Jun 28, 1972

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WAS A SMALL BUSINESS CONCERN FOR PURPOSES OF AWARD UNDER AN RFP ISSUED BY THE NAVY ELECTRONICS SUPPLY OFFICE. GAO WILL NOT QUESTION THE DECISION OF THE BOARD WHERE NO EVIDENCE IS PRESENTED OTHER THAN THAT PREVIOUSLY CONSIDERED BY SBA. DISTRICT COURT THAT THE BOARD'S DETERMINATION WAS NOT A VIOLATION OF APPLICABLE REGULATIONS. WAS A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THE AWARD TO DUMONT OF THE SET-ASIDE PORTION OF QUALIFIED PRODUCTS LIST OSCILLOSCOPES UNDER NAVY ELECTRONICS SUPPLY OFFICE. AWARD WAS MADE TO DUMONT OF THE SET-ASIDE PORTION. SINCE THE ISSUES RAISED BY HEWLETT PACKARD WERE IDENTICAL TO THOSE PRESENTED BY YOUR PROTEST. WE SUSPENDED CONSIDERATION OF THE MATTER IN ACCORDANCE WITH OUR POLICY OF NOT RENDERING A DECISION ON A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION.

B-173301, JUN 28, 1972

PROCUREMENT LAW - SBA SIZE APPEALS BOARD DECISION - REQUEST FOR REVIEW CONCERNING A REQUEST OF TEKTRONIX, INC; FOR REVIEW OF A SMALL BUSINESS ADMINISTRATION'S SIZE APPEALS BOARD DECISION THAT DUMONT OSCILLOSCOPE LABORATORIES, INC; WAS A SMALL BUSINESS CONCERN FOR PURPOSES OF AWARD UNDER AN RFP ISSUED BY THE NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILL. GAO WILL NOT QUESTION THE DECISION OF THE BOARD WHERE NO EVIDENCE IS PRESENTED OTHER THAN THAT PREVIOUSLY CONSIDERED BY SBA. FURTHER, THE COMP. GEN. CANNOT DISREGARD THE DECISION OF THE D.C. DISTRICT COURT THAT THE BOARD'S DETERMINATION WAS NOT A VIOLATION OF APPLICABLE REGULATIONS. SEE HEWLETT-PACKARD COMPANY V. THOMAS S. KLEPPE, SMALL BUSINESS ADMINISTRATOR AND DUMONT OSCILLOSCOPE LABORATORIES, INC; CIVIL ACTION NO. 472-72. (MARCH 20, 1972.)

TO KING & KING:

BY LETTER, WITH ENCLOSURES, OF JANUARY 25, 1972, AND PRIOR CORRESPONDENCE, YOU REQUESTED ON BEHALF OF TEKTRONIX, INC; OUR REVIEW OF SMALL BUSINESS ADMINISTRATION'S SIZE APPEALS BOARD'S DECISION NO. 528, DECEMBER 1, 1971 (REQUEST FOR RECONSIDERATION DENIED JANUARY 14, 1972). IN ITS DECISION, THE BOARD CONCLUDED THAT DUMONT OSCILLOSCOPE LABORATORIES, INC; WAS A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THE AWARD TO DUMONT OF THE SET-ASIDE PORTION OF QUALIFIED PRODUCTS LIST OSCILLOSCOPES UNDER NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, REQUEST FOR PROPOSALS NO. N00126-71-R-1XM204.

ON FEBRUARY 16, 1972, AWARD WAS MADE TO DUMONT OF THE SET-ASIDE PORTION, NOTWITHSTANDING TEKTRONIX'S PROTEST, BECAUSE OF AN URGENT NEED FOR THE OSCILLOSCOPES. ON MARCH 8, 1972, HEWLETT-PACKARD FILED SUIT IN A UNITED STATES DISTRICT COURT QUESTIONING THE LEGALITY OF THE SIZE APPEALS BOARD'S DETERMINATION. SINCE THE ISSUES RAISED BY HEWLETT PACKARD WERE IDENTICAL TO THOSE PRESENTED BY YOUR PROTEST, WE SUSPENDED CONSIDERATION OF THE MATTER IN ACCORDANCE WITH OUR POLICY OF NOT RENDERING A DECISION ON A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION. IN HEWLETT-PACKARD COMPANY V. THOMAS S. KLEPPE, SMALL BUSINESS ADMINISTRATOR & DUMONT OSCILLOSCOPE LABORATORIES, INC; CIVIL ACTION NO. 472-72, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON MARCH 20, 1972, DENIED PLAINTIFF'S MOTIONS FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION. ON MARCH 20, 1972, HEWLETT-PACKARD VOLUNTARILY DISMISSED THE ACTION WITHOUT PREJUDICE, AND YOUR REQUEST FOR OUR REVIEW WAS RENEWED.

UNDER 15 U.S.C. 637(B)(6) A DECISION OF SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS "CONCLUSIVE" UPON THE PROCUREMENT AGENCY INVOLVED. 46 COMP. GEN. 898, 900 (1967); 44 COMP. GEN. 271, 273 (1964). THUS, NAVY COULD PROPERLY RELY ON THE BOARD'S DECISION IN AWARDING THE CONTRACT TO DUMONT. MOREOVER, WE HAVE OFTEN STATED THAT OUR OFFICE MAY NOT IGNORE A DETERMINATION BY SBA OF THE SIZE STATUS OF A PARTICULAR CONCERN. WITH PARTICULAR RELEVANCE TO YOUR REQUEST FOR REVIEW, WE HAVE HELD THAT WHERE, AS HERE, NO EVIDENCE OR ARGUMENT IS PRESENTED TO OUR OFFICE WHICH WAS NOT PRESENTED TO AND CONSIDERED BY SBA, THERE IS NO BASIS ON WHICH OUR OFFICE COULD PROPERLY QUESTION THE DECISION OF THE BOARD. 173910, SEPTEMBER 7, 1971; CF. B-173504, DECEMBER 29, 1971. MOREOVER, ALTHOUGH THE COURT ACTION WAS DISMISSED WITHOUT PREJUDICE, WE DO NOT BELIEVE THAT WE CAN DISREGARD THE COURT'S CONCLUSION, IN DENYING THE MOTION FOR A PRELIMINARY INJUNCTION, THAT THE BOARD'S DETERMINATION WAS NOT A VIOLATION OF APPLICABLE REGULATION. SEE 50 COMP. GEN. 627 (B- 170536, MARCH 15, 1971).

ACCORDINGLY, YOUR REQUEST FOR REVIEW IS DENIED.