B-152925, FEB. 24, 1964

B-152925, FEB. 24, 1964

TO ELGIN SWEEPER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1963, AND ENCLOSURES, PROTESTING AN AWARD TO WAYNE MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. AMC/T) 11-184-64-79/C/JD, ISSUED BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO.

UNDER THE INVITATION IN QUESTION, BIDS WERE REQUESTED FOR FURNISHING A QUANTITY OF STREET-TYPE SELF-PROPELLED ROTARY SWEEPERS FOR DELIVERY TO VARIOUS NAVAL AND MARINE CORPS INSTALLATIONS. THE INVITATION GAVE NOTICE TO ALL PROSPECTIVE BIDDERS THAT THE PROCUREMENT WAS A TOTAL SMALL BUSINESS SET-ASIDE AND THAT BIDS WERE BEING SOLICITED ONLY FROM SMALL BUSINESS CONCERNS. BIDS WERE OPENED ON NOVEMBER 13, 1963, AND IT APPEARED THAT WAYNE MANUFACTURING COMPANY WAS THE LOW BIDDER. YOU PROTESTED THE AWARD TO WAYNE MANUFACTURING COMPANY ON THE GROUND THAT WAYNE IS DOMINANT IN THE FIELD OF OPERATION INVOLVED IN THIS PROCUREMENT AND THEREFORE DOES NOT QUALIFY AS SMALL BUSINESS.

SECTION 3 OF THE SMALL BUSINESS ACT AS AMENDED BY PUBLIC LAW 85 536, 72 STAT. 384, 15 U.S.C. 632, PROVIDES THAT "FOR THE PURPOSES OF THIS ACT, A SMALL-BUSINESS CONCERN SHALL BE DEEMED TO BE ONE WHICH IS INDEPENDENTLY OWNED AND OPERATED AND WHICH IS NOT DOMINANT IN ITS FIELD OF OPERATION. * *" SECTION 8 (B) (6) OF THE ACT (15 U.S.C. 637 (B) (6) ( FURTHER EMPOWERS AND DIRECTS THE SMALL BUSINESS ADMINISTRATION TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED SMALL-BUSINESS CONCERNS FOR THE PURPOSE OF EFFECTUATING THE PROVISIONS OF THE ACT, AND PROVIDES THAT OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS SHALL ACCEPT THIS DETERMINATION AS CONCLUSIVE.

SECTION 121.3-2 (N) OF THE SMALL BUSINESS ADMINISTRATION RULES AND REGULATIONS, 13 C.F.R. 116, PROVIDES AS FOLLOWS:

"A CONCERN IS "NOT DOMINANT IN ITS FIELD OF OPERATION" WHEN IT DOES NOT EXERCISE A CONTROLLING OR MAJOR INFLUENCE IN A KIND OF BUSINESS ACTIVITY IN WHICH A NUMBER OF BUSINESS CONCERNS ARE PRIMARILY ENGAGED. DETERMINING WHETHER DOMINANCE EXISTS, CONSIDERATION SHALL BE GIVEN TO ALL APPROPRIATE FACTORS INCLUDING VOLUME OF BUSINESS, NUMBER OF EMPLOYEES, FINANCIAL RESOURCES, COMPETITIVE STATUS OR POSITION, OWNERSHIP OR CONTROL OF MATERIALS, PROCESSES, PATENTS, AND LICENSE AGREEMENTS, FACILITIES, SALES TERRITORY, AND NATURE OF BUSINESS ACTIVITY.'

UPON RECEIPT OF YOUR PROTEST THE PROCURING OFFICE REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR A DETERMINATION AS TO WHETHER WAYNE MANUFACTURING COMPANY IS DOMINANT IN THE INVOLVED FIELD OF OPERATION. ADDITION TO THE CRITERIA SET FORTH IN THE PRECEDING PARAGRAPH, IT IS REPORTED THAT SPECIFIC CONSIDERATION WAS GIVEN TO THE INFORMATION SUBMITTED BY YOU IN SUPPORT OF YOUR CONTENTION. CONSIDERATION WAS ALSO GIVEN TO RECORDS PERTAINING TO FOUR MANUFACTURERS IN ADDITION TO THOSE MENTIONED BY YOU, ONE OF WHICH, THE G. H. TENNANT COMPANY OF MINNEAPOLIS, HAS DONE CONSIDERABLE BUSINESS WITH THE GOVERNMENT AND IS INCREASING ITS PROPORTIONATE SHARE OF SAME. AFTER REVIEWING ALL AVAILABLE INFORMATION AND EVIDENCE, THE SMALL BUSINESS ADMINISTRATION, UNDER DATE OF DECEMBER 5, 1963, DETERMINED THAT WAYNE MANUFACTURING COMPANY IS NOT DOMINANT IN THE FIELD OF OPERATION IN WHICH IT BID ON THIS PROCUREMENT, AND IS THEREFORE CONSIDERED TO BE SMALL BUSINESS FOR THE PURPOSES OF INVITATION NO. AMC/T) 11-184-64-79/C/JD. SINCE THIS DETERMINATION IS, BY LAW, MADE CONCLUSIVE ON THE PROCUREMENT OFFICERS OF THE GOVERNMENT, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO AWARD TO THE WAYNE MANUFACTURING COMPANY, AND YOUR PROTEST MUST THEREFORE BE DENIED.