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B-205253, NOV 10, 1981

B-205253 Nov 10, 1981
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DIGEST: GAO WILL NOT REVIEW PROTESTS CONCERNING BIDDER'S SMALL BUSINESS SIZE STATUS AND THE SMALL BUSINESS SIZE STANDARD APPLIED BY THE CONTRACTING AGENCY WHERE THE SMALL BUSINESS ADMINISTRATION HAS MADE DETERMINATIONS RELATING TO THOSE MATTERS SINCE THOSE DETERMINATIONS ARE CONCLUSIVE UNDER 15 U.S.C. WHILE THE SBA ADMITS THAT THE STANDARD APPLIED WAS INCORRECT. SBA STATED THAT IT WAS TOO LATE TO CHANGE THE SIZE STANDARD. THE SBA IS EMPOWERED TO DETERMINE CONCLUSIVELY MATTERS CONCERNING A BIDDER'S SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT AND SALES PURPOSES. BECAUSE WE DO NOT HAVE THE LEGAL AUTHORITY TO DO SO. WHEN THOSE REGULATIONS ARE VIEWED IN CONJUNCTION WITH 15 U.S.C. THE PROTEST IS DISMISSED.

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B-205253, NOV 10, 1981

DIGEST: GAO WILL NOT REVIEW PROTESTS CONCERNING BIDDER'S SMALL BUSINESS SIZE STATUS AND THE SMALL BUSINESS SIZE STANDARD APPLIED BY THE CONTRACTING AGENCY WHERE THE SMALL BUSINESS ADMINISTRATION HAS MADE DETERMINATIONS RELATING TO THOSE MATTERS SINCE THOSE DETERMINATIONS ARE CONCLUSIVE UNDER 15 U.S.C. SEC. 637(B) (1976).

ALLIANCE PROPERTIES, INC.:

ALLIANCE PROPERTIES, INC., THE LOW BIDDER ON SOLICITATION NO. DAKF03 81-B -0167, A SMALL BUSINESS SET-ASIDE ISSUED BY THE FORT ORD ARMY BASE, PROTESTS THE SMALL BUSINESS ADMINISTRATION'S (SBA) DECISION TO DENY ALLIANCE A CONTINUED SMALL BUSINESS STATUS BECAUSE OF FAILURE TO FILE COMPLETE UP-TO-DATE FINANCIAL STATEMENTS. ALLIANCE ALSO CHALLENGES THE SMALL BUSINESS SIZE STANDARD APPLIED BY FORT ORD AND ASSERTS THAT, WHILE THE SBA ADMITS THAT THE STANDARD APPLIED WAS INCORRECT, SBA STATED THAT IT WAS TOO LATE TO CHANGE THE SIZE STANDARD.

UNDER 15 U.S.C. SEC. 637(B)(6) (1976), THE SBA IS EMPOWERED TO DETERMINE CONCLUSIVELY MATTERS CONCERNING A BIDDER'S SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT AND SALES PURPOSES. REGULATIONS PROVIDE THAT SBA REGIONAL DIRECTORS SHALL MAKE ORIGINAL SIZE DETERMINATIONS OR DECIDE PROTESTS REGARDING A BUSINESS' SIZE STATUS. 13 C.F.R. SECS. 121.3-4, 121.3-5 (1981); 41 C.F.R. SECS. 1-1.703-1, 1 1.703-2(A)-(E) (1981). THE SBA SIZE APPEALS BOARD MAY ENTERTAIN APPEALS FROM DETERMINATIONS AND DECISIONS OF REGIONAL DIRECTORS. 13 C.F.R. SEC. 121.3-6; 41 C.F.R. SEC. 1-1.703-2(F). THEREFORE, THIS OFFICE DOES NOT CONSIDER PROTESTS RELATING TO SIZE STATUS, GMP SCIENTIFIC CORPORATION, B-201356, JANUARY 6, 1981, 81-1 CPD 8, BECAUSE WE DO NOT HAVE THE LEGAL AUTHORITY TO DO SO. SEE SPRADLIN CORPORATION, B-186167, APRIL 15, 1976, 76-1.

FURTHER, THOSE REGULATIONS ALSO PROVIDE APPEALS PROCEDURES FOR CHALLENGES FROM A CONTRACTING OFFICER'S DETERMINATION OF THE APPLICABLE SIZE STANDARD. 13 C.F.R. SEC. 121.3-6(B); 41 C.F.R. SEC. 1-1.703 2(G). WHEN THOSE REGULATIONS ARE VIEWED IN CONJUNCTION WITH 15 U.S.C. SEC. 637(B)(6), THEY CLEARLY ESTABLISH THE SBA AS THE SOLE ADJUDICATOR OF SIZE STANDARD ISSUES. PACIFIC DIVING INDUSTRIES, INC., B-195405, AUGUST 1, 1979, 79-2 CPD 72.

ACCORDINGLY, THE PROTEST IS DISMISSED.

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