B-181501, OCT 24, 1974

B-181501: Oct 24, 1974

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WHERE SBA DECLINED TO ISSUE A COC TO BIDDER ON BASIS THAT BIDDER IS NOT SMALL BUSINESS FOR PURPOSE OF PROCUREMENT. NO RELIEF IS PROVIDED. IS "CONCLUSIVE." 2. AGENCY HAD AUTHORITY TO ACCEPT BIDDER'S SELF-CERTIFICATION AND AWARD TO THAT FIRM WAS PROPER. WAS ISSUED BY THE DEPARTMENT OF THE NAVY FOR THE PROCUREMENT OF VARIOUS ITEMS OF MICROFILM OF ENGINEERING DRAWINGS. THE SUBJECT PROTEST CONCERNS THE REJECTION THEREUNDER OF THE TELEPICPHONICS BID ON THE GROUNDS THAT THAT FIRM WAS NOT A SMALL BUSINESS CONCERN. RECOMMENDED THAT THE CONTRACT NOT BE AWARDED TO TELEPICPHONICS BECAUSE IT WAS UNSATISFACTORY IN TECHNICAL CAPABILITY. THE CONTRACTING OFFICER DETERMINED THAT ELEPICPHONICS WAS NONRESPONSIBLE AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR REVIEW UNDER ARMED SERVICES PROCUREMENT REGULATION SEC. 1-705.4(C)(1973 ED.).

B-181501, OCT 24, 1974

1. WHERE SBA DECLINED TO ISSUE A COC TO BIDDER ON BASIS THAT BIDDER IS NOT SMALL BUSINESS FOR PURPOSE OF PROCUREMENT, NO RELIEF IS PROVIDED, SINCE DECISION OF SBA REGARDING SIZE STATUTS OF COMPANY, BY STATUTE, IS "CONCLUSIVE." 2. IN ABSENCE OF PROTEST AGAINST SIZE STATUS OF BIDDER WHICH HAD CERTIFIED ITSELF TO BE SMALL BUSINESS, AGENCY HAD AUTHORITY TO ACCEPT BIDDER'S SELF-CERTIFICATION AND AWARD TO THAT FIRM WAS PROPER.

TELEPICPHONICS, INCORPORATED:

INVITATION FOR BIDS SBSA N00383-74-B-0438, A TOTAL SMALL BUSINESS SET ASIDE, WAS ISSUED BY THE DEPARTMENT OF THE NAVY FOR THE PROCUREMENT OF VARIOUS ITEMS OF MICROFILM OF ENGINEERING DRAWINGS. THE SUBJECT PROTEST CONCERNS THE REJECTION THEREUNDER OF THE TELEPICPHONICS BID ON THE GROUNDS THAT THAT FIRM WAS NOT A SMALL BUSINESS CONCERN.

TELEPICPHONICS SUBMITTED THE LOWEST OF SEVEN BIDS. HOWEVER, A PREAWARD SURVEY TEAM FROM THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES DISTRICT (DCASD), CAMDEN, NEW JERSEY, RECOMMENDED THAT THE CONTRACT NOT BE AWARDED TO TELEPICPHONICS BECAUSE IT WAS UNSATISFACTORY IN TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, QUALITY ASSURANCE CAPABILITY, AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. ON THE BASIS OF THIS SURVEY, THE CONTRACTING OFFICER DETERMINED THAT ELEPICPHONICS WAS NONRESPONSIBLE AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR REVIEW UNDER ARMED SERVICES PROCUREMENT REGULATION SEC. 1-705.4(C)(1973 ED.). IN A LETTER OF APRIL 9, 1974, SBA DECLINED TELPICPHONICS' REQUEST FOR A CERTIFICATE OF COMPETENCY, AND INFORMED THE CONTRACTING OFFICER THAT "BASED ON THE DATA RECEIVED FROM THE COMPANY, IT HAS BEEN DETERMINED THAT TELEPICPHONICS, INCORPORATED IS OTHER THAN SMALL BUSINESS FOR THE PURPOSES OF THIS PROCUREMENT."

BY LETTER DATED APRIL 9, 197J, TELEPICPHONICS ADVISED THE CONTRACTING OFFICER THAT IT WAS APPEALING THE DECISION OF THE SBA TO THE SIZE APPEALS BOARD OF THE SMALL BUSINESS ADMINISTRATION. BY TELEGRAM DATED JUNE 4, 1974, THE SIZE APPEALS BOARD INFORMED THE CONTRACTING OFFICER THAT THE TELEPICPHONICS APPEAL WAS DENIED AND THAT THE BOARD HAD FOUND THE PROTESTER TO BE OTHER THAN SMALL BUSINESS FOR THE PURPOSES OF THE PROCUREMENT. CONSEQUENTLY, THE CONTRACTING OFFICER DETERMINED THAT TELEPICPHONICS WAS NONRESPONSIVE TO THE IFB, AND MADE AWARD ON JUNE 5, 1974, TO INTERNATIONAL MICROFILMERS, INCORPORATED, THE SECOND LOW BIDDER.

TELEPICPHONICS HAS CHALLENGED THE DETERMINATION OF NONRESPONSIBILITY ON THE GROUNDS IT WAS IN FACT A SMALL BUSINESS. ADDITIONALLY, IT ALLEGED AFTER AWARD THAT UNDER THE SIZE STANDARDS APPLIED TO ITS COMPANY, INTERNATIONAL ALSO WAS NOT SMALL BUSINESS.

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 OF THE SBA REGARDING SIZE STATUS OF A COMPANY, BY STATUTE, IS "CONCLUSIVE," WE HAVE NO ALTERNATIVE BUT TO DENY TELEPICPHONICS' PROTEST AGAINST THE DETERMINATION THAT IT WAS OTHER THAN A SMALL BUSINESS. SEE 46 COMP. GEN. 102 (1966); 44 ID. 271, 273 (1964).

THE SUCCESSFUL BIDDER, INTERNATIONAL, CERTIFIED IN ITS PROPOSAL THAT IT WAS A SMALL BUSINESS CONCERN. UNDER ASPR SEC. 1-703(B) (1973 AND 1974 EDS.), 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 SBA FOR DETERMINATION. THE CONTRACTING OFFICER DID NOT QUESTION INTERNATIONAL'S SIZE, NOR DID HE SUBMIT THE QUESTION CONCERNING INTERNATIONAL'S SIZE STATUS TO SBA FOR DETERMINATION PRIOR TO AWARD. ALTHOUGH THE CONTRACTING OFFICER MAY, ON HIS OWN INITIATIVE, PROTEST THE SMALL BUSINESS STATUS OF A BIDDER AT ANY TIME AFTER BID OPENING, THIS IS A MATTER OF DISCRETION, WHICH WE CAN NOT SAY WAS ABUSED IN THIS CASE. ASPR SEC. 1-703(B)(2). HOWEVER, UPON RECEIPT OF TELEPICPHONICS' SIZE PROTEST AFTER AWARD, THE PROCURING ACTIVITY SHOULD HAVE FORWARDED THE MATTER TO THE SBA IN ACCORDANCE WITH ASPR SEC. 1 703(B)(1)(C) (1973 ED.) WHICH PROVIDED AS FOLLOWS:

"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 DOES NOT APPEAR FROM THE ADMINISTRATIVE RECORD FURNISHED OUR OFFICE THAT THE CONTRACTING OFFICER FORWARDED THE PROTEST TO SBA FOR ITS CONSIDERATION IN FUTURE ACTIONS AS REQUIRED. HOWEVER, THE QUOTED ASPR PROVISION MAKES IT CLEAR THAT HAD THE SBA SUSTAINED TELEPICPHONICS' APPEAL, THAT DECISION WOULD AFFECT ONLY SIMILAR FUTURE PROCUREMENTS AND WOULD NOT AFFECT THE VALIDITY OF THE AWARD MADE TO INTERNATIONAL UNDER THE SUBJECT SOLICITATION. SEE ALSO MID-WEST CONSTRUCTION, LTD. V. UNITED STATES, 387 F.2D 957 (CT. CL. 1967).

WE HAVE HELD THAT IN THE ABSENCE OF A PROTEST, 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. 46 COMP. GEN. 342 (1966). THEREFORE, WE CANNOT CONCLUDE THAT THE AWARD TO INTERNATIONAL WAS IMPROPER. MATTER OF FEDERAL CONTRACTING CO., B-180807, MAY 17, 1974.

ACCORDINGLY, THE PROTEST IS DENIED.