B-163904, SEP. 25, 1968

B-163904, SEP. 25, 1968

TO SAXON, MAGUIRE AND TUCKER:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAMS DATED APRIL 1 AND 4 AND YOUR LETTER DATED APRIL 5, 1968, PROTESTING, ON BEHALF OF AROTECH MANUFACTURING COMPANY, AN AWARD TO ANY OTHER BIDDER UNDER UNITED STATES ARMY INVITATION FOR BIDS NO. DAAE07-68-B-0292, WHICH IS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS FIRMS.

ON SEPTEMBER 9, 1968, THE ADMINISTRATOR OF SMALL BUSINESS APPROVED A DECISION OF THE SIZE APPEALS BOARD FINDING THAT AROTECH MANUFACTURING COMPANY IS NOT A SMALL BUSINESS CONCERN FOR PURPOSE OF AWARD UNDER THIS PROCUREMENT. SINCE IT IS NOT A SMALL BUSINESS CONCERN, THE SMALL BUSINESS ADMINISTRATION (SBA) IS NOT AUTHORIZED TO CERTIFY AS TO ITS CAPACITY AND CREDIT TO PERFORM A SPECIFIC GOVERNMENT CONTRACT.

UNDER 15 U.S.C. 637 (B) (6), SBA IS AUTHORIZED TO DETERMINE WHICH FIRMS WITHIN ANY INDUSTRY ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT. THIS PROVISION OF LAW FURTHER STATES THAT "OFFICES OF THE GOVERNMENT HAVING PROCUREMENT OR LENDING POWERS * * * SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATION AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED -SMALL-BUSINESS CONCERNS,- AS AUTHORIZED AND DIRECTED UNDER THIS PARAGRAPH.'

SINCE THE DECISION OF SBA, BY STATUTE, IS "CONCLUSIVE," WE FIND NO LEGAL BASIS TO QUESTION ITS DETERMINATION THAT AROTECH WAS NOT SMALL BUSINESS FOR PURPOSES OF THE INSTANT PROCUREMENT. SEE 44 COMP. GEN. 271. ACCORDINGLY, AROTECH'S PROTEST THAT THE SBA FINDING WAS NOT BASED ON CURRENT INFORMATION SHOULD BE ADDRESSED TO THE SBA. HOWEVER, WE ARE ADVISED BY THE DEPARTMENT OF THE ARMY THAT AN AWARD UNDER THE INVITATION WAS MADE ON SEPTEMBER 13, 1968, TO WEST COAST MACHINERY INC. ..END :