B-180807, MAY 17, 1974

B-180807: May 17, 1974

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SINCE PROTEST AGAINST SELF-CERTIFIED SMALL BUSINESS STATUS OF BIDDER ON TOTAL SMALL BUSINESS SET-ASIDE ADVERTISED PROCUREMENT WAS UNTIMELY FILED WITH CONTRACTING OFFICER UNDER ASPR 1-703(B)(1) BECAUSE IT WAS MADE MORE THAN FIVE WORKING DAYS AFTER BID OPENING. AGENCY HAD AUTHORITY TO ACCEPT BIDDER'S CERTIFICATION IN ABSENCE OF TIMELY PROTEST AND AWARD THERETO WILL NOT BE QUESTIONED BY GAO. DACA63-74-B-0048 WAS ISSUED BY THE DEPARTMENT OF THE ARMY. WHICH WAS A TOTAL SMALL BUSINESS SET-ASIDE. THE BIDS RECEIVED WERE OPENED. WAS THE LOW BIDDER. AWARD OF THE CONTRACT WAS MADE TO STRONG. PROTESTED AGAINST AWARD OF THE CONTRACT TO STRONG ON THE GROUNDS THAT IT WAS A LARGE BUSINESS CONCERN (THIS PROTEST WAS SIMULTANEOUSLY FILED WITH THIS OFFICE).

B-180807, MAY 17, 1974

SINCE PROTEST AGAINST SELF-CERTIFIED SMALL BUSINESS STATUS OF BIDDER ON TOTAL SMALL BUSINESS SET-ASIDE ADVERTISED PROCUREMENT WAS UNTIMELY FILED WITH CONTRACTING OFFICER UNDER ASPR 1-703(B)(1) BECAUSE IT WAS MADE MORE THAN FIVE WORKING DAYS AFTER BID OPENING, AGENCY HAD AUTHORITY TO ACCEPT BIDDER'S CERTIFICATION IN ABSENCE OF TIMELY PROTEST AND AWARD THERETO WILL NOT BE QUESTIONED BY GAO; AGENCY PROPERLY FORWARDED PROTEST TO SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN FUTURE ACTIONS.

TO FEDERAL CONTRACTING COMPANY:

INVITATION FOR BIDS (IFB) NO. DACA63-74-B-0048 WAS ISSUED BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, FORT WORTH, TEXAS, FOR IMPROVEMENTS TO 160 FAMILY QUARTERS, FORT BLISS, TEXAS. THE IFB, WHICH WAS A TOTAL SMALL BUSINESS SET-ASIDE, ESTABLISHED FEBRUARY 26, 1974, AS BID OPENING DATE. ON THAT DATE, THE BIDS RECEIVED WERE OPENED, AND BILL STRONG ENTERPRISES, INCORPORATED (STRONG), WHICH HAD CERTIFIED ITSELF AS A SMALL BUSINESS FOR PURPOSES OF THIS PROCUREMENT, WAS THE LOW BIDDER. MARCH 8, 1974, AWARD OF THE CONTRACT WAS MADE TO STRONG.

BY WESTERN UNION MAIL GRAM DATED MARCH 8, 1974, AND RECEIVED BY THE CORPS OF ENGINEERS ON MARCH 11, 1974, FEDERAL CONTRACTING COMPANY, A BIDDER ON THIS IFB, PROTESTED AGAINST AWARD OF THE CONTRACT TO STRONG ON THE GROUNDS THAT IT WAS A LARGE BUSINESS CONCERN (THIS PROTEST WAS SIMULTANEOUSLY FILED WITH THIS OFFICE). FEDERAL CONTRACTING ALSO REQUESTED THAT THE SMALL BUSINESS ADMINISTRATION (SBA) EVALUATE THE ALLEGED SMALL BUSINESS STATUS OF STRONG. BY LETTER OF MARCH 11, 1974, THE CORPS OF ENGINEERS DENIED THE PROTEST BECAUSE IT WAS NOT FILED WITHIN FIVE WORKING DAYS AFTER THE BID OPENING DATE. THE AGENCY INFORMED THE PROTESTER, HOWEVER, THAT ITS PROTEST WAS FORWARDED TO SBA, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703(B)(1) FOR CONSIDERATION IN FUTURE ACTIONS.

IN ACCORDANCE WITH 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 TIMELY 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 SBA FOR ITS DETERMINATION. IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER QUESTIONED STRONG'S STATUS AS A SMALL BUSINESS. THEREFORE, SINCE THERE WAS NO TIMELY PROTEST PRIOR TO AWARD, THE CONTRACTING OFFICER ACCEPTED STRONG'S CERTIFICATION.

THIS PROTEST WAS DATED MARCH 8, 1974, AND WAS RECEIVED ON MARCH 11, 1974. IN THIS REGARD, ASPR 1-703(B)(1) PROVIDES IN PART AS FOLLOWS:

"ANY BIDDER, OFFEROR, OR ANY OTHER INTERESTED PARTY MAY, IN CONNECTION WITH A CONTRACT INVOLVING A SMALL BUSINESS SET ASIDE OR OTHERWISE INVOLVING SMALL BUSINESS PREFERENTIAL CONSIDERATION, QUESTION THE SMALL BUSINESS STATUS OF ANY APPARENTLY SUCCESSFUL BIDDER OR OFFEROR BY SENDING A WRITTEN PROTEST TO THE CONTRACTING OFFICER RESPONSIBLE FOR THE PARTICULAR PROCUREMENT. THE PROTEST SHALL CONTAIN THE BASIS FOR THE PROTEST TOGETHER WITH SPECIFIC DETAILED EVIDENCE SUPPORTING THE PROTESTANT'S CLAIM THAT SUCH BIDDER OR OFFEROR IS NOT A SMALL BUSINESS. SUCH PROTEST MUST BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE CLOSE OF BUSINESS ON THE FIFTH WORKING DAY EXCLUSIVE OF SATURDAY, SUNDAY, AND FEDERAL LEGAL HOLIDAYS (HEREINAFTER REFERRED TO AS WORKING DAY) AFTER BID OPENING DATE FOR FORMALLY ADVERTISED AND SMALL BUSINESS RESTRICTED ADVERTISED PROCUREMENTS. ***"

ALSO, ASPR 1-703(B)(1)(C) DIRECTS THE CONTRACTING OFFICER TO TAKE THE FOLLOWING ACTION ON PROTESTS RECEIVED AFTER AWARD:

"A PROTEST RECEIVED BY A CONTRACTING OFFICER AFTER AWARD OF A CONTRACT SHALL BE FORWARDED TO THE SMALL BUSINESS ADMINISTRATION DISTRICT OFFICE SERVING THE AREA IN WHICH THE PROTESTED CONCERN IS LOCATED WITH A NOTATION THEREON THAT AWARD HAS BEEN MADE. THE PROTESTANT SHALL BE NOTIFIED THAT AWARD HAS BEEN MADE AND THAT HIS PROTEST HAS BEEN FORWARDED TO SBA FOR ITS CONSIDERATION IN FUTURE ACTIONS."

IT APPEARS THAT THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH THE REGULATIONS IN FORWARDING THE PROTEST TO THE SBA FOR ITS CONSIDERATION IN FUTURE ACTIONS.

WE HAVE HELD THAT IN THE ABSENCE OF A TIMELY PROTEST AS REQUIRED BY ASPR, A CONTRACTING OFFICER HAS AUTHORITY TO ACCEPT AT FACE VALUE A REPRESENTATION BY A BIDDER THAT IT IS A SMALL BUSINESS CONCERN AND THAT AN AWARD UNDER SUCH CIRCUMSTANCES WILL NOT BE QUESTIONED BY OUR OFFICE. COMP. GEN. 342 (1966). THEREFORE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S ACTIONS IN THIS CASE WERE IMPROPER. B 178856, JUNE 26, 1973; B- 173629, NOVEMBER 30, 1971.

ACCORDINGLY, THE PROTEST IS DENIED.