B-173533, OCT 12, 1971

B-173533: Oct 12, 1971

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REJECTION OF THE BID WAS REQUIRED. PROTESTANT WAS PROVIDED A SECOND OPPORTUNITY TO COMPETE AND CONSEQUENTLY WAS NOT PREJUDICED BY SUCH ACTION. IS NOT A SMALL BUSINESS CONCERN. AN AFFIRMATIVE FINDING BY THE SBA SIZE APPEALS BOARD IS CONCLUSIVE ON THE PROCUREMENT AGENCY REQUIRING DENIAL OF THE PROTEST. INC.: REFERENCE IS MADE TO YOUR LETTER DATED JULY 1. THE TWO SOLICITATIONS FOR FIRE RETARDANT SOLUTION (SLURRY) WERE SET ASIDE FOR SMALL BUSINESS PARTICIPATION. REJECTION OF THE BID IS REQUIRED. 42 COMP. AWARD WAS NOT MADE TO THE ONLY OTHER BIDDER (HUNOT RETARDANT COMPANY) ON IFB -07. RATHER THE PROCUREMENT WAS READVERTISED ON MATERIALLY DIFFERENT TERMS. PROVIDING FOR THE CANCELLATION OF INVITATIONS FOR BIDS AFTER OPENING WHERE THERE ARE INADEQUATE.

B-173533, OCT 12, 1971

BID PROTEST - ACCEPTANCE PERIOD - CANCELLED IFB - SMALL BUSINESS STATUS DECISIONS DENYING PROTEST AGAINST THE REJECTION OF A BID, CANCELLATION OF THE INVITATION, READVERTISEMENT AND AWARD OF A CONTRACT TO HUNOT RETARDANT COMPANY FOR FIRE RETARDANT SOLUTIONS. ALTHOUGH THE CONTRACTING OFFICER INADVERTENTLY ALLOWED PROTESTANT'S SHORT ACCEPTANCE PERIOD (10 DAYS) TO EXPIRE, REJECTION OF THE BID WAS REQUIRED. SEE 42 COMP. GEN. 604 (1963). DUE TO CANCELLATION OF THE INVITATION, PROTESTANT WAS PROVIDED A SECOND OPPORTUNITY TO COMPETE AND CONSEQUENTLY WAS NOT PREJUDICED BY SUCH ACTION. FINALLY, ALTHOUGH PROTESTANT CONTENDS THAT SUCCESSFUL LOW BIDDER, HUNOT, UNDER THE READVERTISED INVITATION, IS NOT A SMALL BUSINESS CONCERN, AN AFFIRMATIVE FINDING BY THE SBA SIZE APPEALS BOARD IS CONCLUSIVE ON THE PROCUREMENT AGENCY REQUIRING DENIAL OF THE PROTEST.

TO FIRE FLYERS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1971, PROTESTING THE REJECTION OF YOUR LOW BID UNDER FOREST SERVICE INVITATION FOR BIDS (IFB) RK-07-71-07 AND THE READVERTISEMENT AND AWARD TO HUNOT RETARDANT COMPANY UNDER IFB R5-07-71-13.

THE TWO SOLICITATIONS FOR FIRE RETARDANT SOLUTION (SLURRY) WERE SET ASIDE FOR SMALL BUSINESS PARTICIPATION. IFB -07 CONTAINED THE STANDARD PROVISION CONTEMPLATING A BID ACCEPTANCE PERIOD OF 60 DAYS FROM THE DATE OF BID OPENING UNLESS THE BIDDER STATED OTHERWISE. YOUR BID SPECIFIED A 10-DAY PERIOD FOR ACCEPTANCE. THE CONTRACTING OFFICE OVERLOOKED THE 10- DAY ACCEPTANCE PERIOD AND DID NOT REQUEST YOU TO EXTEND BEFORE EXPIRATION OF THE 10-DAY PERIOD. YOU LIKEWISE INITIATED NO STEPS TO EXTEND THE BID ACCEPTANCE PERIOD PRIOR TO ITS EXPIRATION. OUR OFFICE HAS HELD THAT EVEN THOUGH A CONTRACTING OFFICE INADVERTENTLY HAS ALLOWED A SHORT ACCEPTANCE PERIOD SELECTED BY A BIDDER TO EXPIRE, REJECTION OF THE BID IS REQUIRED. 42 COMP. GEN. 604 (1963). SEE, ALSO, DEPARTMENT OF AGRICULTURE PROCUREMENT REGULATIONS 4-2.407-50(D).

HOWEVER, AS YOU RECOGNIZE, AWARD WAS NOT MADE TO THE ONLY OTHER BIDDER (HUNOT RETARDANT COMPANY) ON IFB -07, BUT RATHER THE PROCUREMENT WAS READVERTISED ON MATERIALLY DIFFERENT TERMS. IN THIS CONNECTION, SEE SECTION 1-2.404-1 OF THE FEDERAL PROCUREMENT REGULATIONS, PROVIDING FOR THE CANCELLATION OF INVITATIONS FOR BIDS AFTER OPENING WHERE THERE ARE INADEQUATE, AMBIGUOUS OR OTHERWISE DEFICIENT SPECIFICATIONS IN THE IFB. BUT EVEN IF THE PROCUREMENT SHOULD NOT HAVE BEEN READVERTISED, YOUR BID WOULD NOT HAVE BEEN ELIGIBLE FOR CONSIDERATION SINCE ITS ACCEPTANCE TIME HAD EXPIRED. THEREFORE, YOU WERE NOT PREJUDICED BY THE READVERTISEMENT. RATHER, IT PROVIDED YOU WITH A SECOND OPPORTUNITY TO COMPETE FOR THE PROCUREMENT.

ACCORDINGLY, THE PROTEST WITH RESPECT TO IFB -07 IS DENIED.

YOU HAVE CONTENDED ALSO THAT THE AWARD UNDER THE READVERTISED IFB SHOULD NOT HAVE BEEN MADE TO HUNOT WHICH WAS THE LOW BIDDER BECAUSE IT DID NOT QUALIFY AS A SMALL BUSINESS CONCERN. HOWEVER, THE SMALL BUSINESS ADMINISTRATION (SBA) SIZE APPEALS BOARD HAS DETERMINED THAT HUNOT IS AN ELIGIBLE SMALL BUSINESS CONCERN FOR THE PURPOSE OF RECEIVING AN AWARD UNDER IFB -13. UNDER SECTION 8(B)(6) OF THE SMALL BUSINESS ACT OF 1958, 15 U.S.C. 637(B)(6), A DECISION OF THE SBA REGARDING THE SIZE STATUS OF A PARTICULAR CONCERN IS CONCLUSIVE ON THE PROCUREMENT AGENCY INVOLVED. SINCE THE DECISION REGARDING SIZE STATUS, BY STATUTE, IS "CONCLUSIVE," WE HAVE NO ALTERNATIVE BUT TO DENY THAT ASPECT OF YOUR PROTEST ALSO. SEE B- 166633, JULY 2, 1969, AND CASES CITED THEREIN.