B-178043, DEC 4, 1973

B-178043: Dec 4, 1973

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ACCEPTANCE OF BID ON 100 PERCENT SMALL BUSINESS SET ASIDE FROM BIDDER WHICH CERTIFIED ITSELF AS A SMALL BIDDER WAS PROPER SINCE ASPR 1.703 STATES CERTIFICATION SHALL BE ACCEPTED AT FACE VALUE AND NO QUESTION REGARDING BIDDER'S SIZE STATUS WAS RAISED PRIOR TO AWARD. CONTRACT AWARD WAS PROPER EVEN IF CONTRACTOR IS SUBSEQUENTLY FOUND TO BE NOT A SMALL BUSINESS. 2. DUGAN: THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 6. WHICH FIRM WAS AWARDED A CONTRACT UNDER INVITATION FOR BIDS DABE 13-73 B- 0019. WAS A TOTAL SMALL-BUSINESS SET-ASIDE. COVAN REPRESENTED THAT IT WAS A SMALL BUSINESS CONCERN. ASPR 1.703 STATES THAT "THE CONTRACTING OFFICER SHALL ACCEPT AT FACE VALUE *** A REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN" UNLESS THE SMALL BUSINESS ADMINISTRATION (SBA) HAD DETERMINED THAT THE BIDDER IS NOT A SMALL BUSINESS.

B-178043, DEC 4, 1973

1. ACCEPTANCE OF BID ON 100 PERCENT SMALL BUSINESS SET ASIDE FROM BIDDER WHICH CERTIFIED ITSELF AS A SMALL BIDDER WAS PROPER SINCE ASPR 1.703 STATES CERTIFICATION SHALL BE ACCEPTED AT FACE VALUE AND NO QUESTION REGARDING BIDDER'S SIZE STATUS WAS RAISED PRIOR TO AWARD. THEREFORE, CONTRACT AWARD WAS PROPER EVEN IF CONTRACTOR IS SUBSEQUENTLY FOUND TO BE NOT A SMALL BUSINESS. 2. QUESTIONS REGARDING SIZE OF BIDDER ON SMALL BUSINESS SET ASIDE MUST BE DETERMINED BY SBA AND NOT GAO.

TO MR. PAUL V. DUGAN:

THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 6, 1973, IN WHICH YOU QUESTIONED THE SMALL BUSINESS STATUS OF COVAN WORLD-WIDE MOVING, INC., WHICH FIRM WAS AWARDED A CONTRACT UNDER INVITATION FOR BIDS DABE 13-73 B- 0019, ISSUED BY FORT RILEY, KANSAS.

THE SOLICITATION, FOR LOCAL PACKING AND CONTAINERIZATION SERVICES INCIDENT TO TRANSPORTATION OF PERSONAL PROPERTY BELONGING TO DEPARTMENT OF DEFENSE PERSONNEL, WAS A TOTAL SMALL-BUSINESS SET-ASIDE. IN ITS BID, COVAN REPRESENTED THAT IT WAS A SMALL BUSINESS CONCERN. ASPR 1.703 STATES THAT "THE CONTRACTING OFFICER SHALL ACCEPT AT FACE VALUE *** A REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN" UNLESS THE SMALL BUSINESS ADMINISTRATION (SBA) HAD DETERMINED THAT THE BIDDER IS NOT A SMALL BUSINESS. THAT PROVISION FURTHER SETS FORTH PROCEDURES PURSUANT TO WHICH ANY BIDDER MAY QUESTION THE SMALL BUSINESS STATUS OF ANOTHER BIDDER. THERE IS NO INDICATION IN OUR RECORD, HOWEVER, THAT COVAN'S SMALL BUSINESS STATUS HAD BEEN QUESTIONED BY YOU, SBA, OR ANYONE ELSE, PRIOR TO THE AWARD. ACCORDINGLY, THE CONTRACTING OFFICER ACTED PROPERLY IN RELYING ON COVAN'S CERTIFICATION AND AWARDING THE CONTRACT TO THAT FIRM. 46 COMP. GEN. 342 (1966); 46 COMP. GEN. 898 (1967).

YOU NOW REQUEST THAT WE EITHER "EXPLAIN" TO YOU HOW COVAN QUALIFIED AS A SMALL BUSINESS CONCERN OR ELSE DIRECT CANCELLATION OF THE CONTRACT. INDICATED ABOVE, THE AWARD TO COVAN WAS PROPER AND THERE WOULD BE NO BASIS FOR CANCELING THAT CONTRACT EVEN IF COVAN IS ULTIMATELY DETERMINED NOT TO BE A SMALL BUSINESS. MID-WEST CONSTRUCTION, LTD. V. UNITED STATES, 181 CT. CL. 774, 387 F.2D 957 (1967). WITH RESPECT TO COVAN'S SIZE, THAT DETERMINATION CAN BE MADE ONLY BY SBA AND NOT BY THIS OFFICE. 44 COMP. GEN. 271 (1964).

YOUR ATTENTION IS INVITED TO ASPR 1.703(B)(1)(C), WHICH PROVIDES THAT A PROTEST INVOLVING THE SMALL BUSINESS STATUS OF A BIDDER WHICH IS FILED WITH A CONTRACTING AGENCY AFTER AWARD OF A CONTRACT WILL BE FORWARDED TO THE REGIONAL SBA OFFICE FOR "CONSIDERATION IN FURTHER ACTIONS." THEREFORE, IF YOU ARE INTERESTED IN PURSUING THE QUESTION OF COVAN'S SIZE FOR FUTURE PROCUREMENTS, YOU SHOULD COMMUNICATE DIRECTLY WITH THE CONTRACTING OFFICER.