B-210046 L/M, JAN 6, 1983, OFFICE OF GENERAL COUNSEL
Highlights
TRNASPORTATION DIRECTOR: THIS IS IN RESPONSE TO YOUR LETTER DATED NOVEMBER 29. THE CONTRACT WAS AWARDED AFTER A COST COMPARISON PERFORMED UNDER THE GUIDANCE OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. YOUR LETTER IS ON BEHALF OF YOURSELF AND YOUR FELLOW EMPLOYEES IN THE PUBLIC WORKS TRANSPORTATION DEPARTMENT AT THE NAVAL AIR STATION. HAWTHORNE AVIATION WOULD NOT HAVE QUALIFIED AS A SMALL BUSINESS. THE "GOVERNMENT BID" WOULD THEREFORE HAVE BEEN THE LOWEST ACCEPTABLE BID. WE HAVE NO LEGAL BASIS TO CONSIDER YOUR PROTEST ON THE MERITS. IS INTENDED TO PROTECT BIDDERS FROM THE ARBITRARY REJECTION OF THEIR BIDS. THE SMALL BUSINESS ADMINISTRATION (SBA) IS EMPOWERED TO DETERMINE CONCLUSIVELY SMALL BUSINESS SIZE STATUS MATTERS FOR PURPOSES OF FEDERAL PROCUREMENT.
B-210046 L/M, JAN 6, 1983, OFFICE OF GENERAL COUNSEL
PRECIS-UNAVAILABLE
MR. DONALD G. CAREY, TRNASPORTATION DIRECTOR:
THIS IS IN RESPONSE TO YOUR LETTER DATED NOVEMBER 29, 1982 PROTESTING THE NAVY'S AWARD OF A CONTRACT UNDER SOLICITATION N62467-82 B-2753 TO HAWTHORNE AVIATION FOR TRANSPORTATION, OPERATION AND MAINTENANCE SERVICES AT THE NAVAL AIR STATION IN KEY WEST, FLORIDA. THE CONTRACT WAS AWARDED AFTER A COST COMPARISON PERFORMED UNDER THE GUIDANCE OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-76, WHICH REFLECTS THE POLICY OF THE FEDERAL GOVERNMENT TO RELY ON PRIVATE ENTERPRISE FOR ITS NEEDS UNLESS THE NATIONAL INTEREST REQUIRES OTHERWISE. THE COMPARISON SHOWED THAT IT WOULD BE LESS COSTLY TO CONTRACT FOR THE SERVICES THAN TO PERFORM THEM IN- HOUSE.
YOUR LETTER IS ON BEHALF OF YOURSELF AND YOUR FELLOW EMPLOYEES IN THE PUBLIC WORKS TRANSPORTATION DEPARTMENT AT THE NAVAL AIR STATION. YOU CONTEND THAT THE CONTRACT SOLICITATION INCLUDED AN INCORRECT SMALL BUSINESS SIZE STANDARD. ACCORDING TO YOUR NOVEMBER 29 LETTER, HAD THIS ERROR NOT OCCURRED, HAWTHORNE AVIATION WOULD NOT HAVE QUALIFIED AS A SMALL BUSINESS, AND THE "GOVERNMENT BID" WOULD THEREFORE HAVE BEEN THE LOWEST ACCEPTABLE BID.
WE HAVE NO LEGAL BASIS TO CONSIDER YOUR PROTEST ON THE MERITS. OUR OFFICE VIEWS A DECISION BY A FEDERAL AGENCY TO CONTRACT FOR SERVICES RATHER THAN PERFORM THEM IN-HOUSE AS A MATTER OF EXECUTIVE POLICY, GENERALLY NOT REVIEWABLE AS A BID PROTEST. THE SOLE EXCEPTION TO THIS POSITION OCCURS WHEN AN AGENCY INDUCES THE SUBMISSION OF BIDS, BUT THEN FAILS TO AWARD A CONTRACT BECAUSE OF A GOVERNMENT COST COMPARISON EVALUATION WHICH DOES NOT CONFORM TO THE ESTABLISHED GROUND RULES. THIS EXCEPTION CLEARLY DOES NOT APPLY HERE AND, IN ANY CASE, IS INTENDED TO PROTECT BIDDERS FROM THE ARBITRARY REJECTION OF THEIR BIDS, SO THAT IT DOES NOT EXTEND TO NON-BIDDERS SUCH AS YOU AND YOUR FELLOW EMPLOYEES.
MOREOVER, WE DO NOT CONSIDER PROTESTS BASED ON ALLEGEDLY INCORRECT SMALL BUSINESS SIZE STANDARDS. UNDER 15 U.S.C. SEC. 637(B)(6) (1976), THE SMALL BUSINESS ADMINISTRATION (SBA) IS EMPOWERED TO DETERMINE CONCLUSIVELY SMALL BUSINESS SIZE STATUS MATTERS FOR PURPOSES OF FEDERAL PROCUREMENT. THIS STATUTORY AUTHORITY, VIEWED IN CONJUNCTION WITH SBA REGULATIONS WHICH PROVIDE PROCEDURES FOR APPEALING A CONTRACTING OFFICER'S DETERMINATION OF THE SIZE STANDARD TO BE USED IN A PROCUREMENT, ESTABLISHES SBA AS THE SOLE ADJUDICATOR OF SIZE STANDARD ISSUES.