B-200340, OCT 7, 1980

B-200340: Oct 7, 1980

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DIGEST: PROTEST ALLEGING THAT CONTRACTING OFFICER FAILED TO CONSIDER SMALL BUSINESS SIZE STANDARD IN MAKING AWARD IS SUMMARILY DENIED WHERE SOLICITATION CONTAINING SIZE STANDARD APPLICABLE TO THE PROCUREMENT WAS NOT SMALL BUSINESS SET-ASIDE. SMALL BUSINESS SIZE STANDARDS ARE CRITERIA WHICH MUST BE MET BY A FIRM TO BE CONSIDERED A "SMALL BUSINESS CONCERN.". THE SIZE STANDARD APPLICABLE TO A SPECIFIC PROCUREMENT IS INCLUDED IN SOLICITATIONS PURSUANT TO DAR SEC. 2-201 SECTION L (XX). WHEN A PROCUREMENT IS SET ASIDE FOR SMALL BUSINESS. COMPLIANCE WITH THE APPLICABLE SIZE STANDARD IS A PREREQUISITE FOR AWARD. INCLUSION OF AN APPLICABLE STANDARD IN A SOLICITATION IS NOT LIMITED TO SET-ASIDES. SINCE BIDDERS ARE EXPECTED TO INDICATE IF THEY QUALIFY AS A SMALL BUSINESS REGARDLESS OF WHETHER THE PROCUREMENT IS SET ASIDE (SEE STANDARD FORM 33).

B-200340, OCT 7, 1980

DIGEST: PROTEST ALLEGING THAT CONTRACTING OFFICER FAILED TO CONSIDER SMALL BUSINESS SIZE STANDARD IN MAKING AWARD IS SUMMARILY DENIED WHERE SOLICITATION CONTAINING SIZE STANDARD APPLICABLE TO THE PROCUREMENT WAS NOT SMALL BUSINESS SET-ASIDE.

FILTRON MANUFACTURING COMPANY, INC.:

FILTRON MANUFACTURING COMPANY (FILTRON) PROTESTS THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE ARMY (ARMY) UNDER INVITATION FOR BIDS (IFB) DAAD07-80-B-0093 TO RFI CORPORATION. FILTRON CLAIMS THAT THE ARMY CONTRACTING OFFICER FAILED TO CONSIDER THE SMALL BUSINESS SIZE STANDARD REFERRED TO BY PARAGRAPH L.9 OF THE SOLICITATION IN MAKING THE AWARD. PARAGRAPH L.9 STATES THAT "FOR THE PURPOSE OF THIS PROCUREMENT, THE QUALIFYING INDUSTRY SMALL BUSINESS SIZE STANDARD, AS TO THE NUMBER OF EMPLOYEES, MAY NOT EXCEED 500."

SMALL BUSINESS SIZE STANDARDS ARE CRITERIA WHICH MUST BE MET BY A FIRM TO BE CONSIDERED A "SMALL BUSINESS CONCERN." SEE DEFENSE ACQUISITION REGULATION (DAR) SEC. 1-701.1 (1976 ED.). THE SIZE STANDARD APPLICABLE TO A SPECIFIC PROCUREMENT IS INCLUDED IN SOLICITATIONS PURSUANT TO DAR SEC. 2-201 SECTION L (XX). WHEN A PROCUREMENT IS SET ASIDE FOR SMALL BUSINESS, COMPLIANCE WITH THE APPLICABLE SIZE STANDARD IS A PREREQUISITE FOR AWARD. HOWEVER, INCLUSION OF AN APPLICABLE STANDARD IN A SOLICITATION IS NOT LIMITED TO SET-ASIDES; SINCE BIDDERS ARE EXPECTED TO INDICATE IF THEY QUALIFY AS A SMALL BUSINESS REGARDLESS OF WHETHER THE PROCUREMENT IS SET ASIDE (SEE STANDARD FORM 33), THE STANDARD APPLICABLE TO THE PROCUREMENT MAY BE INCLUDED IN THE INVITATION IN ANY CASE.

HERE, WE ARE ADVISED THAT THE PROCUREMENT WAS NOT SET ASIDE FOR SMALL BUSINESS AND THAT THE SIZE STANDARD WAS INCLUDED IN THE INVITATION IN CONJUNCTION WITH THE STANDARD FORM 33 SIZE STATUS CERTIFICATION REQUIREMENT SOLELY FOR AGENCY RECORD KEEPING PURPOSES. SINCE THIS WAS NOT A SET-ASIDE, THE CONTRACTING OFFICER COULD NOT PROPERLY LIMIT AWARD TO A FIRM MEETING THE SMALL BUSINESS SIZE STANDARD. UCE, INCORPORATED, B-186668, SEPTEMBER 16, 1976, 76-2 CPD 249.

CONSEQUENTLY, WE SEE NO MERIT TO THE PROTEST.

GENERALLY, OUR OFFICE WILL REQUEST A REPORT FROM THE PROCURING AGENCY UPON RECEIPT OF A BID PROTEST IN ACCORDANCE WITH OUR BID PROTEST PROCEDURES. HOWEVER, WHERE IT IS CLEAR FROM A PROTESTER'S SUBMISSIONS THAT THE PROTEST IS WITHOUT MERIT, WE WILL DECIDE THE MATTER ON THAT BASIS. SHABAN MANUFACTURING INC., B-195761, SEPTEMBER 19, 1979, 79-2 CPD 192.

THIS PROTEST IS SUMMARILY DENIED.