B-170681, JUN 19, 1972

B-170681, JUN 19, 1972

BID PROTEST - SMALL BUSINESS STATUS - SUBCONTRACTOR LISTING DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF REDELCO PLASTICS AGAINST A SUBCONTRACT AWARDED TO R. F. DILL AND ASSOCIATES BY GORDON H. BALL, INC; AS PRIME CONTRACTOR FOR THE BUREAU OF RECLAMATION. SINCE THE SMALL BUSINESS ADMINISTRATION HAS VERIFIED THAT DILL IS A SMALL BUSINESS MANUFACTURING THE ITEM CALLED FOR, AND SINCE NEITHER THE IFB NOR THE PRIME CONTRACT CONTAIN A REQUIREMENT FOR SUBCONTRACTOR LISTING, THERE IS NO BASIS FOR DISTURBING THE PRIOR DENIAL.

TO REDELCO PLASTICS:

WE HAVE BEEN REQUESTED TO RECONSIDER OUR DECISION OF OCTOBER 22, 1970, IN WHICH WE DENIED YOUR PROTEST AGAINST THE AWARD OF A SUBCONTRACT TO R. F. DILL AND ASSOCIATES BY GORDON H. BALL, INCORPORATED, UNDER ITS PRIME CONTRACT WITH THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR.

IT IS CONTENDED THAT BALL VIOLATED ITS CONTRACTUAL OBLIGATION TO GIVE SMALL BUSINESSES AN EQUAL AND FAIR CHANCE TO COMPETE FOR THE SUBCONTRACT SINCE DILL WAS NOT THEN OR NOW A SMALL BUSINESS CONCERN, WHEREAS REDELCO WAS AND IS SMALL BUSINESS. ALSO, DOUBT IS EXPRESSED AS TO WHETHER DILL IS ACTUALLY ENGAGED IN THE MANUFACTURE AND ASSEMBLY OF THE FLAP WEEP VALVE ASSEMBLIES CALLED FOR UNDER THE SUBCONTRACT. FINALLY, IT IS CONTENDED THAT THE PRIME CONTRACTOR FAILED TO TIMELY FILE A LIST OF SUBCONTRACTORS WITH THE BUREAU AND ENGAGED IN BID SHOPPING.

IN OUR PRIOR DECISION WE CONCLUDED THAT BALL HAD COMPLIED WITH THE SMALL BUSINESS SUBCONTRACTING POLICY SET FORTH IN ITS CONTRACT. AS NOTED THEREIN, THE CONTRACT REQUIRED BALL TO ESTABLISH A PROGRAM WHICH WOULD ENABLE SMALL BUSINESSES TO RECEIVE EQUAL CONSIDERATION AS SUBCONTRACTORS, BUT DID NOT REQUIRE THAT SMALL BUSINESS CONCERNS RECEIVE PREFERENTIAL CONSIDERATION. REDELCO WAS PERMITTED TO SUBMIT A BID. HOWEVER, DILL SUBMITTED A LOWER BID AND WAS AWARDED THE CONTRACT. ALTHOUGH NOT GERMANE TO THE VALIDITY OF THE AWARD, WE ALSO NOTED THAT DILL APPEARED TO BE A SMALL BUSINESS CONCERN WITH A GROSS INCOME OF $100,000 TO $150,000; AND THAT WHILE THE PIPE TO BE SUPPLIED IS MANUFACTURED BY GOODRICH, DILL WILL PERFORM THE CUTTING AND MACHINING OF THE BRASS AND PLASTIC TUBING, THE FORMING OF THE TOP AND BOTTOM PIECES, AND WILL ASSEMBLE THE FLAP VALVE WEEP ASSEMBLY UNITS AT ITS PLANT.

CERTAIN EVIDENCE HAS BEEN SUBMITTED TO SHOW THAT DILL IS AN AGENT OF GOODRICH AND, THEREFORE, NOT SMALL BUSINESS. IT IS ALSO ALLEGED THAT DILL HAS NO MANUFACTURING FACILITIES. WE HAVE BEEN ADVISED THAT ON THE BASIS OF AN INFORMAL CHECK THIS PAST MARCH, THE SMALL BUSINESS ADMINISTRATION HAS VERIFIED THAT DILL IS A SMALL BUSINESS CONCERN AND IS MANUFACTURING THE ITEM CALLED FOR UNDER ITS SUBCONTRACT. WE FIND NOTHING IN THE INFORMATION FURNISHED TO ESTABLISH THAT DILL WAS ACTING AS A GOODRICH AGENT WITH RESPECT TO THIS SUBCONTRACT.

NEITHER THE INVITATION FOR BIDS NOR THE RESULTING PRIME CONTRACT INCLUDED ANY REQUIREMENT RESPECTING SUBCONTRACTOR LISTING. THEREFORE, BALL'S FAILURE TO LIST SUBCONTRACTORS WOULD NOT BE VIOLATIVE OF EITHER THE CONTRACT OR REGULATION.

IN THESE CIRCUMSTANCES, THERE IS NO BASIS TO ALTER OUR DECISION OF OCTOBER 22, 1970, AND IT IS AFFIRMED.