B-231196, Jun 10, 1988, 88-1 CPD 557

B-231196: Jun 10, 1988

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The General Accounting Office will not consider an allegation that a solicitation has an improper Standard Industrial Classification used to determine the small business size standard for the procurement. Since conclusive authority to determine the proper classification is vested in the Small Business Administration. Protest is untimely where filed more than 10 days after protester knew of the basis for the protest. The SIC is used to determine the appropriate small business size standard. MSI contends that only the original SIC is correct for this solicitation. Would not have qualified under the original SIC and its related size standard. Since MSI was the only other offeror. It argues that it should have received the award.

B-231196, Jun 10, 1988, 88-1 CPD 557

PROCUREMENT - Socio-Economic Policies - Small businesses - Size standards - Administrative discretion DIGEST: 1. The General Accounting Office will not consider an allegation that a solicitation has an improper Standard Industrial Classification used to determine the small business size standard for the procurement, since conclusive authority to determine the proper classification is vested in the Small Business Administration. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10-day rule 2. Protest is untimely where filed more than 10 days after protester knew of the basis for the protest. Agency's alleged refusal to meet with the protester does not excuse the protester from complying with filing requirements.

Modification Systems Inc:

Modification Systems Inc. (MSI) protests the Federal Highway Administration's (FHA) selection of a particular Standard Industrial Classification (SIC) for the work under request for proposals (RFp) No. DTFH6l-88-R-00019 for highway simulator maintenance and support. The SIC is used to determine the appropriate small business size standard. MSI also protests some alleged procedural violations made by the agency.

We dismiss the protest.

FHA issued the RFP on November 4, 1987, and included SIC 8744. November 11, FHA amended the solicitation, changing the SIC to 8731. MSI contends that only the original SIC is correct for this solicitation, that the work cannot be classified under the new SIC, and that the awardee of the contract, ENSCO, Inc., would not have qualified under the original SIC and its related size standard. Since MSI was the only other offeror, it argues that it should have received the award.

The initial determination of the appropriate classification of a product or service being procured is made by the contracting officer, with the affected firms having the right of appeal to the Small Business Administration (SBA). The SBA's determination on this matter is conclusive, and therefore our Office will not consider such issues. Federal Acquisition Regulation (FAR) Sec. 19.3O3(c); Libby Corp., B-228326, Oct. 9, 1987, 87-2 CPD Para. 351.

MSI also protests that it was misled by the contracting officer's January 14, 1988, letter stating that "a number of proposals ... have been eliminated," when, in fact, in an April 4, 1988 letter, the contracting officer informed MSI that ENSCO, Inc. had received the award and that MSI had been the only other offeror.

MSI further alleges that the contracting officer did not comply with FAR Sec. 15.1001(b)(2), which requires that in a small business set aside, prior to award, the contracting officer inform unsuccessful offerors in writing of the apparent successful offeror. MSI states that it first received notice of the award in the contracting officer's April 4 letter stating that award had already been made.

MSI knew these aspects of its protest when it received the contracting officer's April 4 letter, which was, by MSI's admission, more than 10 days before it filed its protest with our Office. Accordingly, this part of the protest is untimely since it was filed more than 10 days after MSI knew of the basis for the protest. 4 C.F.R. Sec. 21.2(a)(2).

We note, however, that generally an agency may not release information concerning the number of offerors to the public. FAR Sec. 15.413-l(a). Further, MSI suffered no competitive disadvantage or prejudice as a result of not knowing how many offerors submitted proposals. Similarly, the agency's failure to give notice of the intended award did not prejudice MSI, since MSI has not alleged that the awardee does not qualify as a small business under the SIC for this procurement. See A.S.K. Associates, B-228367, Nov. 30, 1987, 87-2 CPD Para. 539.

MSI further argues that it is qualified to do the work solicited and its price was less than one-half of the awardee's price. This issue is also untimely filed since MSI knew it had been eliminated from the competition for technical reasons when it received the agency's January 14, 1988, letter.

MSI argues that the FHA is responsible for the untimely filing. MSI had intended to file the protest with the agency at a meeting with the agency scheduled for April 22, and to file a copy to our Office the same day. MSI states that the agency canceled the meeting, and is avoiding a face-to -face meeting. Consequently, MSI decided to lodge its protest with this Office. The fact that the protester has not been able to meet with agency officials does not, however, excuse MSI from our timeliness requirements, since MSI already knew the basis for its protest. The agency's failure to meet with MSI is not in itself a protestable issue because it is a procedural matter that does not involve the validity of the award. Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD Para. 73.

The protest is dismissed.