B-182559, DEC 12, 1974

B-182559: Dec 12, 1974

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PROTEST WHICH QUESTIONS THE SMALL BUSINESS STATUS OF ANOTHER BIDDER IS MATTER FOR CONSIDERATION BY SMALL BUSINESS ADMINISTRATION. PROTEST WHICH ALLEGES THAT ANOTHER BIDDER IS NOT A RESPONSIBLE FIRM WILL NOT BE CONSIDERED BY GAO WHICH HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION. EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. IS NOT A SMALL BUSINESS WITHIN THE MEANING OF THE RULES AND REGULATIONS OF THE SMALL BUSINESS ADMINISTRATION (SBA) AND IS THEREFORE INELIGIBLE FOR AWARD UNDER THE SUBJECT SOLICITATION. IS NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF THE ARMED SERVICES PROCUREMENT REGULATION BECAUSE THAT FIRM HAS NEVER BEEN AWARDED A GOVERNMENT CONTRACT.

B-182559, DEC 12, 1974

1. PROTEST WHICH QUESTIONS THE SMALL BUSINESS STATUS OF ANOTHER BIDDER IS MATTER FOR CONSIDERATION BY SMALL BUSINESS ADMINISTRATION, RATHER THAN GAO, UNDER 15 U.S.C. SEC. 637(B)(6) (1970). 2. PROTEST WHICH ALLEGES THAT ANOTHER BIDDER IS NOT A RESPONSIBLE FIRM WILL NOT BE CONSIDERED BY GAO WHICH HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

OLD ATLANTIC SERVICES, INC.:

THIS MATTER CONCERNS THE PROTEST FILED BY COUNSEL FOR OLD ATLANTIC SERVICES, INC., UNDER SOLICITATION NO. DABT35-75-B-0016, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED BY THE DEPARTMENT OF THE ARMY, FORT DIX, NEW JERSEY.

COUNSEL CONTENDS THAT KLEEN RITE CORPORATION, THE APPARENT LOW BIDDER, IS NOT A SMALL BUSINESS WITHIN THE MEANING OF THE RULES AND REGULATIONS OF THE SMALL BUSINESS ADMINISTRATION (SBA) AND IS THEREFORE INELIGIBLE FOR AWARD UNDER THE SUBJECT SOLICITATION. COUNSEL INDICATES THAT HE RAISED THIS QUESTION WITH THE NEW YORK OFFICE OF THE SBA. ALSO, COUNSEL CONTENDS THAT HARRY STROUGH AND ASSOCIATES, ANOTHER BIDDER ON THE SOLICITATION, IS NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF THE ARMED SERVICES PROCUREMENT REGULATION BECAUSE THAT FIRM HAS NEVER BEEN AWARDED A GOVERNMENT CONTRACT.

UNDER 15 U.S.C. SEC. 637(B)(6) (1970), IT IS THE DUTY OF SBA, RATHER THAN GAO, TO DETERMINE WHETHER A CONCERN IS SMALL BUSINESS FOR PURPOSES OF A PARTICULAR PROCUREMENT, AND SBA'S DETERMINATION IS CONCLUSIVE UPON THE PROCUREMENT AGENCY INVOLVED. SEE MATTER OF RAS SANITATION, INC., B 180705, MARCH 28, 1974.

WITH REGARD TO THE CONTENTION THAT HARRY STROUGH AND ASSOCIATES IS NOT A RESPONSIBLE BIDDER, OUR OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. SEE MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, JUNE 7, 1974, 53 COMP. GEN. .

IN VIEW OF THE FACT THAT THE BASES FOR THE PROTEST CONCERN MATTERS WHICH ARE NOT FOR CONSIDERATION BY OUR OFFICE, WE ARE CLOSING OUR FILE WITHOUT FURTHER ACTION.