B-165847, FEB. 24, 1969
Highlights
INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO MR. WAS ISSUED ON OCTOBER 23. BIDS WERE OPENED ON NOVEMBER 14. THE LOW BID WAS SUBMITTED BY EDWIN B. PROTESTED ORALLY TO THE CONTRACTING OFFICER AT VARIOUS TIMES THAT CAPITOL MILK WAS NOT A SMALL BUSINESS CONCERN. WHILE THE ACTUAL DATE IS IN DISPUTE. IT IS AGREED THAT THE CONTRACTING OFFICER'S ADVICE CAME MORE THAN FIVE WORKING DAYS AFTER BID OPENING. IN THE CIRCUMSTANCES THE WRITTEN PROTEST WAS CONSIDERED UNTIMELY BUT UNDER ASPR 1 -703 (B) (1) (II) WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN FUTURE ACTIONS. IN OUR VIEW THE CONTRACTING OFFICER SHOULD HAVE ADVISED HARVEY DAIRY AT THE TIME OF HIS INITIAL ORAL COMPLAINT OF THE PROPER PROCEDURE FOR PROTESTING THE SIZE STATUS OF ANY OTHER BIDDER.
B-165847, FEB. 24, 1969
TO HARVEY DAIRY, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO MR. EDWIN B. WILLIAMS UNDER INVITATION FOR BIDS NO. DSA-138 69-B-0034 TO FURNISH MILK SUPPLIES TO FORT GEORGE G. MEADE, MARYLAND.
INVITATION FOR BIDS NO. DSA-138-69-B-0034, A TOTAL SMALL BUSINESS SET ASIDE, WAS ISSUED ON OCTOBER 23, 1968, FOR MILK AND MILK PRODUCTS REQUIREMENT AT FORT MEADE. BIDS WERE OPENED ON NOVEMBER 14, 1968, AND THE LOW BID WAS SUBMITTED BY EDWIN B. WILLIAMS OF ALBUQUERQUE, NEW MEXICO. WILLIAMS LISTED AS SMALL BUSINESS SUBCONTRACTORS, HADLEY DAIRY, INCORPORATED, READY FOOD PRODUCTS, INCORPORATED, AND CAPITOL MILK PRODUCERS ASSOCIATION. HARVEY DAIRY, THE SECOND LOW BIDDER, PROTESTED ORALLY TO THE CONTRACTING OFFICER AT VARIOUS TIMES THAT CAPITOL MILK WAS NOT A SMALL BUSINESS CONCERN. SOME TIME LATER THE CONTRACTING OFFICER ADVISED HARVEY DAIRY THAT THE PROTEST MUST BE IN WRITING. WHILE THE ACTUAL DATE IS IN DISPUTE, IT IS AGREED THAT THE CONTRACTING OFFICER'S ADVICE CAME MORE THAN FIVE WORKING DAYS AFTER BID OPENING.
ON DECEMBER 5, 1968, HARVEY DAIRY SUBMITTED A PROTEST IN WRITING. BIDDER MAY PROTEST THE SIZE OF AN APPARENTLY SUCCESSFUL BIDDER, BUT UNDER ASPR 1-703 (B) (1) THE PROTEST MUST BE SUBMITTED IN WRITING TO THE CONTRACTING OFFICER WITHIN FIVE WORKING DAYS AFTER BID OPENING. IN THE CIRCUMSTANCES THE WRITTEN PROTEST WAS CONSIDERED UNTIMELY BUT UNDER ASPR 1 -703 (B) (1) (II) WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN FUTURE ACTIONS.
IN OUR VIEW THE CONTRACTING OFFICER SHOULD HAVE ADVISED HARVEY DAIRY AT THE TIME OF HIS INITIAL ORAL COMPLAINT OF THE PROPER PROCEDURE FOR PROTESTING THE SIZE STATUS OF ANY OTHER BIDDER. HOWEVER, THE CONTRACTING OFFICER'S FAILURE TO DO SO DOES NOT WAIVE THE TIME AND PROCEDURAL REQUIREMENTS OF THE REGULATION. THEREFORE, WE MUST CONCLUDE THAT THE PROTEST BY HARVEY DAIRY WAS PROPERLY REJECTED AS UNTIMELY FILED.
IT ALSO HAS BEEN URGED THAT THIS SITUATION IS ANALOGOUS TO THE CIRCUMSTANCES CONSIDERED IN B-161693, DATED JULY 21, 1967, AND JUNE 30, 1967. WE THERE HELD IN ESSENCE THAT A CONTRACTING OFFICER MAY ON HIS OWN INITIATIVE SUBMIT THE SIZE STATUS OF A BIDDER FOR DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION EVEN WHERE THE MATTER WAS FIRST RAISED IN THE MIND OF THE CONTRACTING OFFICER BY THE UNTIMELY PROTEST FROM ANOTHER BIDDER.
IN THIS INSTANCE THE CONTRACTING OFFICER ON THE BASIS OF INFORMATION OTHERWISE AVAILABLE TO HIM DECIDED NOT TO QUESTION THE SIZE STATUS OF CAPITOL MILK EVEN AFTER THE RECEIPT OF THE HARVEY DAIRY PROTEST. SUCH DECISION IS WITHIN THE CONTRACTING OFFICER'S GOOD FAITH DISCRETION. SEE ASPR 1-703 (B) (2).
ACCORDINGLY, YOUR PROTEST MUST BE DENIED.
WE ARE ENCLOSING FOR YOUR INFORMATION A COPY OF OUR LETTER OF TODAY TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, SETTING FORTH OUR RECOMMENDATION FOR AVOIDING IN FUTURE PROCUREMENTS THE CONFUSION WHICH HAS ARISEN CONCERNING THE SUBSTITUTION OF MANUFACTURING PLANTS AFTER BID OPENING.