B-180675(1), AUG 6, 1974

B-180675(1): Aug 6, 1974

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000 IS OTHER THAN SMALL BUSINESS CONCERN AND SINCE PROTESTER WAS UNABLE TO TIMELY PROTEST SUCCESSFUL OFFEROR'S SIZE STATUS PRIOR TO AWARD DUE TO NAVY'S FAILURE TO NOTIFY UNSUCCESSFUL OFFERORS OF APPARENT SUCCESSFUL OFFEROR'S IDENTITY PRIOR TO AWARD IN ACCORDANCE WITH ASPR 1-703(B)(1) AND 3 508.2(B). GAO BELIEVES LEGALITY OF AWARD IS QUESTIONABLE. THE RFP WAS RESTRICTED TO THREE POSSIBLE SOURCES. WHICH WERE DETERMINED TO HAVE PREVIOUSLY SUPPLIED THE IDENTICAL ITEM TO THE PROCURING ACTIVITY OR TO HAVE PREVIOUSLY BEEN APPROVED BY COMPETENT GOVERNMENT TECHNICAL AUTHORITY FOR SUPPLYING THE IDENTICAL ITEM. THE RFP WAS SO RESTRICTED "BECAUSE OF THE STRINGENT TECHNICAL REQUIREMENTS OF THIS PROCUREMENT BUT INSUFFICIENCY OF GOVERNMENT TECHNICAL DATA PERTINENT THERETO.".

B-180675(1), AUG 6, 1974

IN VIEW OF SBA DETERMINATION THAT SUCCESSFUL OFFEROR ON NEGOTIATED SMALL BUSINESS SET-ASIDE PROCUREMENT OF LESS THAN $10,000 IS OTHER THAN SMALL BUSINESS CONCERN AND SINCE PROTESTER WAS UNABLE TO TIMELY PROTEST SUCCESSFUL OFFEROR'S SIZE STATUS PRIOR TO AWARD DUE TO NAVY'S FAILURE TO NOTIFY UNSUCCESSFUL OFFERORS OF APPARENT SUCCESSFUL OFFEROR'S IDENTITY PRIOR TO AWARD IN ACCORDANCE WITH ASPR 1-703(B)(1) AND 3 508.2(B), GAO BELIEVES LEGALITY OF AWARD IS QUESTIONABLE. HOWEVER, THERE CAN BE NO EFFECTIVE REMEDY, INASMUCH AS PERFORMANCE UNDER CONTRACT HAS BEEN COMPLETED.

PSI - PERIPHERAL SUPPORT DIVISION OF THE MESON CORPORATION:

THE UNITED STATES NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, ISSUED REQUEST FOR PROPOSALS (RFP) NO. N00126-74-R-4N0336, A 100 PERCENT SMALL BUSINESS SET-ASIDE, FOR THE SUPPLY OF A QUANTITY OF QUICK LOCK KNOBS. THE RFP WAS RESTRICTED TO THREE POSSIBLE SOURCES, QUELEX DATA SYSTEMS, COMP-SERV COMPANY (COMP-SERV) AND THE PSI PERIPHERAL SUPPORT DIVISION OF THE MESON CORPORATION (PSI), WHICH WERE DETERMINED TO HAVE PREVIOUSLY SUPPLIED THE IDENTICAL ITEM TO THE PROCURING ACTIVITY OR TO HAVE PREVIOUSLY BEEN APPROVED BY COMPETENT GOVERNMENT TECHNICAL AUTHORITY FOR SUPPLYING THE IDENTICAL ITEM. THE RFP WAS SO RESTRICTED "BECAUSE OF THE STRINGENT TECHNICAL REQUIREMENTS OF THIS PROCUREMENT BUT INSUFFICIENCY OF GOVERNMENT TECHNICAL DATA PERTINENT THERETO." AWARD WAS MADE UNDER THE RFP TO THE PRECISION COMPONENTS DIVISION OF BELL INDUSTRIES, INC. (BELL), EFFECTIVE JANUARY 7, 1974. PERFORMANCE UNDER THE CONTRACT HAS BEEN COMPLETED.

UPON BEING ADVISED OF THE AWARD WHEN IT MADE A TELEPHONE INQUIRY TO ASCERTAIN THE RFP'S STATUS, PSI BY TELEGRAM DATED FEBRUARY 19, 1974, PROTESTED TO OUR OFFICE THE AWARD TO BELL ON THE GROUNDS THAT BELL WAS NOT A SMALL BUSINESS CONCERN BUT RATHER WAS A LARGE CONGLOMERATE AND THAT BELL WAS NOT ONE OF THE DESIGNATED SOURCES SPECIFIED IN THE RFP.

BELL CERTIFIED IN ITS PROPOSAL THAT IT WAS A SMALL BUSINESS CONCERN. UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703(B), A CONTRACTING OFFICER IS REQUIRED TO ACCEPT AT FACE VALUE, FOR THE PARTICULAR PROCUREMENT INVOLVED, A CERTIFICATION BY THE OFFEROR THAT IT IS A SMALL BUSINESS CONCERN UNLESS A TIMELY WRITTEN PROTEST IS RECEIVED FROM ANOTHER OFFEROR OR OTHER INTERESTED PARTY CONCERNING THE SIZE STATUS OF THE APPARENTLY SUCCESSFUL OFFEROR, OR THE CONTRACTING OFFICER QUESTIONS THE OFFEROR'S SMALL BUSINESS STATUS AND SUBMITS THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR DETERMINATION. THE CONTRACTING OFFICER DID NOT QUESTION BELL'S SIZE, NOR DID HE SUBMIT THE QUESTION CONCERNING BELL'S SIZE STATUS TO SBA FOR DETERMINATION PRIOR TO AWARD. MOREOVER, PSI DID NOT SUBMIT A TIMELY PROTEST CONCERNING BELL'S SMALL BUSINESS STATUS UNTIL AFTER THE AWARD OF THE CONTRACT, SINCE THE NAVY DID NOT NOTIFY PSI OF THE AWARD UNTIL PSI'S TELEPHONE INQUIRY. UPON RECEIPT OF PSI'S SIZE PROTEST AFTER AWARD, THE NAVY FORWARDED THE MATTER TO THE SBA. THE SBA THEN DETERMINED THAT BELL IS OTHER THAN A SMALL BUSINESS CONCERN. THE NAVY STATES THAT ALTHOUGH THIS SIZE DETERMINATION CANNOT AFFECT THE CONTRACT HERE IN QUESTION, SINCE PSI'S SIZE PROTEST WAS UNTIMELY, THIS DETERMINATION WILL APPLY TO ALL FUTURE PROCUREMENTS IN WHICH BELL PARTICIPATES.

THE NAVY STATES THAT THE FAILURE TO NOTIFY PSI OF THE AWARD UNTIL PSI'S TELEPHONE INQUIRY WAS IN ACCORDANCE WITH THE PROCURING ACTIVITY'S POLICY NOT TO SEND WRITTEN NOTICES AT THE TIME OF AWARD TO UNSUCCESSFUL OFFERORS ON PROCUREMENTS OF LESS THAN $10,000, UNLESS THOSE OFFERORS SPECIFICALLY REQUEST SUCH NOTICE. HOWEVER, WE BELIEVE THIS IS INCONSISTENT WITH ASPR 1 -703(B)(1) AND 3-508.2(B), WHICH GENERALLY REQUIRE THAT THE UNSUCCESSFUL OFFERORS ON ALL NEGOTIATED PROCUREMENTS INVOLVING A SMALL BUSINESS SET- ASIDE BE INFORMED PRIOR TO AWARD OF THE CONTRACT BY WRITTEN NOTICE OF THE NAME AND LOCATION OF THE APPARENT SUCCESSFUL OFFEROR, REGARDLESS OF THE DOLLAR AMOUNT OF THE CONTRACT TO BE AWARDED. UNLESS THE PROCURING ACTIVITY COMPLIES WITH THESE REQUIREMENTS, A TIMELY PROTEST OF THE SUCCESSFUL OFFEROR'S SIZE STATUS IS IMPROBABLE. INDEED, IF APPROPRIATE NOTICE HAD BEEN GIVEN IN THE PRESENT CASE, THEN THE AWARD TO OTHER THAN A SMALL BUSINESS CONCERN IN VIOLATION OF THE RFP'S PROVISION COULD WELL HAVE BEEN PREVENTED.

IN LIGHT OF THE SBA DETERMINATION THAT BELL IS OTHER THAN A SMALL BUSINESS CONCERN, WE WOULD ORDINARILY UNDER THESE CIRCUMSTANCES FIND THAT THE NAVY'S FAILURE TO PROPERLY NOTIFY THE UNSUCCESSFUL OFFERORS OF THE IDENTITY OF THE APPARENT SUCCESSFUL OFFEROR AFFECTS THE VALIDITY OF THE AWARD TO BELL. HOWEVER, WE CANNOT PROPOSE ANY EFFECTIVE REMEDY IN THIS CASE, INASMUCH AS PERFORMANCE UNDER THE CONTRACT HAS BEEN COMPLETED.

WITH REGARD TO THE CONTENTION THAT BELL WAS NOT ONE OF THE DESIGNATED SOURCES, THE NAVY STATES THAT BELL HAS ACQUIRED AND TAKEN OVER COMP SERV AND NOTES THAT BOTH FIRMS HAVE THE SAME ADDRESS. HOWEVER, BY LETTER DATED MAY 24, 1974, THE PRESIDENT OF COMP-SERV SPECIFICALLY DENIES THAT COMP- SERV HAS BEEN ACQUIRED BY BELL AND STATES THAT IT IS STILL A PUBLICLY HELD CORPORATION, ALTHOUGH IT DOES SHARE FACILITIES WITH BELL. THE PRESIDENT OF COMP-SERV, WHO ALSO IS THE DIVISION MANAGER FOR BELL, FURTHER STATES THAT HE REQUESTED AND RECEIVED PERMISSION FROM THE CONTRACTING OFFICER TO QUOTE THE SOLICITATION UNDER BELL.

WE HAVE VERIFIED THE FACT THAT BELL HAS NOT ACQUIRED COMP-SERV. ALSO, IT IS APPARENT, AT LEAST IN RETROSPECT, THAT THE CONTRACTING OFFICER'S ADVICE THAT THE PROPOSAL COULD BE SUBMITTED IN BELL'S NAME WAS ERRONEOUS. HOWEVER, THE NAVY APPARENTLY DID DETERMINE THAT BELL'S PROPOSAL WAS OFFERING ITEMS SUPPLIED BY COMP-SERV. IN ANY CASE, AS STATED ABOVE, THERE IS NO EFFECTIVE REMEDY IN THIS CASE, SINCE PERFORMANCE UNDER THE CONTRACT HAS BEEN COMPLETED.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.