B-174146, FEB 12, 1973

B-174146: Feb 12, 1973

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WE INFORMED YOU THAT WE WOULD TAKE NO ACTION ON THE PROTEST UNTIL THE QUESTION UNDER APPEAL WAS FINALLY LITIGATED. YOUR PROTEST IS DENIED.

B-174146, FEB 12, 1973

BID PROTEST - SECTION 8(A) PROGRAM CONCERNING EFFORTS ON BEHALF OF STAR WINDOW CLEANING CO. REGARDING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO DEE'S WINDOW CLEANING CO. UNDER THE SMALL BUSINESS ADMINISTRATION SECTION 8(A) PROGRAM, 15 U.S.C. 637(A). SINCE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS HELD IN RAY BAILLIE TRASH HAULING, INC. V. KLEPPE, NO. 72-1163, THE SECTION 8(A) PROGRAM TO BE VALID AND CONSTITUTIONAL, AND ABSENT ANY DIFFERENT RESULTS IN ANY OTHER CIRCUIT COURT, GAO FINDS NO BASIS TO QUESTION THE VALIDITY OF THE CONTRACT AWARD.

TO MR. ALBERT L. O'NEIL:

WE REFER AGAIN TO YOUR COMMUNICATION RECEIVED IN OUR OFFICE ON SEPTEMBER 20, 1971, FORWARDING CORRESPONDENCE ON BEHALF OF STAR WINDOW CLEANING COMPANY REGARDING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO DEE'S WINDOW CLEANING COMPANY UNDER THE SMALL BUSINESS ADMINISTRATION (SBA) SECTION 8(A) PROGRAM, 15 U.S.C. 637(A), AND IMPLEMENTING REGULATIONS ADOPTED BY THE SBA, 13 C.F.R. 124.8-1, ET SEQ.

BY LETTER OF DECEMBER 9, 1971, WE ADVISED YOU THAT THE LEGAL QUESTION INVOLVED IN THE PROTEST HAD BEEN THE SUBJECT OF CONFLICTING U.S. DISTRICT COURT OPINIONS. IN VIEW THEREOF, WE INFORMED YOU THAT WE WOULD TAKE NO ACTION ON THE PROTEST UNTIL THE QUESTION UNDER APPEAL WAS FINALLY LITIGATED.

ON JANUARY 5, 1973, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RULED, IN THE CASE OF RAY BAILLIE TRASH HAULING, INCORPORATED V. KLEPPE, NO. 72-1163, THAT THE SMALL BUSINESS ADMINISTRATION MAY ACCEPT CONTRACT AWARDS FROM OTHER GOVERNMENT AGENCIES AND SUBCONTRACT THE WORK TO SOCIALLY OR ECONOMICALLY DISADVANTAGED PERSONS UNDER THE PROCEDURES ADOPTED BY SBA. INASMUCH AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS DECLARED THE SECTION 8(A) PROGRAM VALID AND CONSTITUTIONAL, AND ABSENT ANY DIFFERENT RESULT OUTSTANDING IN ANY OTHER CIRCUIT COURT, YOUR PROTEST IS DENIED.