B-157149, SEP. 15, 1965

B-157149, SEP. 15, 1965

TO HONORABLE EUGENE P. FOLEY, ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION:

WE HAVE RECEIVED A LETTER DATED AUGUST 17, 1965, SIGNED BY THE GENERAL COUNSEL, SMALL BUSINESS ADMINISTRATION, CONCERNING THE PROTEST OF BOWLAND JANITORIAL SERVICE, INCORPORATED, AGAINST THE ELIGIBILITY OF THE KLATE HOLT COMPANY TO HAVE RECEIVED AWARD AS A SMALL BUSINESS UNDER REQUEST FOR PROPOSALS BG 831-26-5-208P ISSUED BY THE MANNED SPACECRAFT CENTER, HOUSTON, TEXAS (NATIONAL AERONAUTICS AND SPACE ADMINISTRATION), ON MARCH 10, 1965. IT IS STATED IN THE LETTER THAT THE CONTRACTING OFFICER PROPERLY DID NOT CONSIDER THE PROTEST TIMELY WITHIN THE MEANING OF SECTION 121.3-5 (A) OF THE SMALL BUSINESS SIZE STANDARDS REGULATION (REVISION 5) WHICH DECLARES THAT THE QUESTION OF A BIDDER'S SMALL BUSINESS STATUS MAY ONLY BE QUESTIONED WITHIN FIVE DAYS, NOT INCLUDING SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS, AFTER BID OPENING OR PROPOSAL OPENING. PARAGRAPH 4 (E) OF THE RFP PERMITTED THE SUBMISSION OF PROPOSALS UNTIL THE CLOSE OF BUSINESS ON APRIL 9, 1965, AND THE PROTEST APPARENTLY WAS NOT FILED UNTIL JUNE 28, 1965. THE ADMINISTRATION THEREFORE HAS DECLINED TO GO INTO THE MERITS OF THE QUESTION.

WE THINK THERE MAY BE SOME ELEMENT OF UNFAIRNESS, ALBEIT UNINTENTIONAL, IN THIS DISPOSITION OF THE MATTER. THE PROCUREMENT UNDER DISCUSSION WAS A NEGOTIATED AS DISTINGUISHED FROM A FORMALLY ADVERTISED PROCUREMENT. TYPICAL OF THE PROCEDURES UTILIZED THROUGHOUT THE GOVERNMENT IN THE FORMER CATEGORY OF TRANSACTIONS IS NASAPR 3.805-1 (C) WHICH GOVERNED THE PROCUREMENT UNDER DISCUSSION. THE GENERAL RULE AS STATED THEREIN IS THAT AFTER RECEIPT OF PROPOSALS NO INFORMATION REGARDING THE IDENTITY OF THE OFFERORS PARTICIPATING IN THE NEGOTIATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC OR, PRESUMABLY, TO OTHER BIDDERS. ALTHOUGH NASAPR 1.1050 (I) SPEAKS TO THE CONTRARY IN THAT IT PERMITS REVELATION OF THE IDENTITIES OF COMPETING FIRMS UPON REQUEST, IT IS NOT THOUGHT THERE IS A DUTY UPON ANY PROPOSER TO PUT FORTH SUCH A REQUEST ON THE REMOTE POSSIBILITY OF DISCOVERING A SIZE STATUS MISREPRESENTATION.

THE RFP IN POINT SOLICITED OFFERS UNTIL THE CLOSE OF BUSINESS ON APRIL 9. THAT DATE WAS NOT THE EQUIVALENT OF A BID OPENING DATE IN A FORMALLY ADVERTISED PROCUREMENT. THERE WAS NO PUBLIC OPENING OF BIDS AND DISPLAY OF THE RESULTS. RATHER, IN ACCORDANCE WITH ESTABLISHED REGULATIONS A SOURCE EVALUATION BOARD WAS CONVENED TO REVIEW THE PROPOSALS IN CAMERA BEGINNING ON APRIL 13, AND ON JUNE 18, FOUR SUCCESSFUL COMPANIES WERE NOTIFIED OF SELECTION FOR A FINAL ROUND OF COMPETITION FOR THE AWARD. THE NOTIFYING LETTER DID NOT REVEAL THE IDENTITY OF ANY FIRM BUT THE ADDRESSEE. FINAL COST PROPOSALS WERE TO BE SUBMITTED BY JUNE 23.

IT HAS BEEN ALLEGED ON BEHALF OF BOWLAND JANITORIAL SERVICE, INCORPORATED, THAT THE COMPANY WAS NOT AWARE IT WAS BIDDING AGAINST KLATE HOLT COMPANY UNTIL JUNE 28 WHEN AWARD OF THE CONTRACT TO THAT COMPANY WAS ANNOUNCED BY LETTER ADDRESSED TO THE UNSUCCESSFUL OFFERORS. WE HAVE BEEN ADVISED INFORMALLY THAT YOUR ADMINISTRATION MAY NOT CONSIDER THE LETTER OF THE RULE APPROPRIATE FOR APPLICATION UNDER THESE CIRCUMSTANCES. IT IS OUR VIEW THAT THE FACTS AS HEREINABOVE STATED WARRANT SOME MODIFICATION OF THE RULE IN THIS CASE. YOU MAY THEREFORE WISH, NOTWITHSTANDING THE REGULATION, TO CONSIDER THE PROTEST ON ITS MERITS.

WILL YOU PLEASE ADVISE US OF THE ACTION YOU PLAN TO TAKE WITH RESPECT TO THIS SPECIFIC MATTER.