B-212211, AUG 1, 1983

B-212211, AUG 1, 1983

DIGEST: GAO HAS NO AUTHORITY TO ORDER THE SUSPENSION OF PROCUREMENT PROCEEDINGS OR AWARD PENDING THE SMALL BUSINESS ADMINISTRATION'S SIZE APPEALS BOARD'S RULING ON A CHALLENGE TO THE SIZE STANDARD USED IN A SOLICITATION. WHERE SIZE APPEALS BOARD RULES AFTER BID OPENING, ITS DETERMINATION DOES NOT AFFECT CURRENT PROCUREMENT BUT APPLIES ONLY PROSPECTIVELY.

APEX INTERNATIONAL MANAGEMENT SERVICES, INC.:

APEX INTERNATIONAL MANAGEMENT SERVICES, INC. PROTESTS THE AWARD OF ANY CONTRACT UNDER SOLICITATION NO. F38610-83-B-0029, A SMALL BUSINESS SET- ASIDE, ISSUED BY THE AIR FORCE FOR FAMILY HOUSING MAINTENANCE SERVICES AT ITS CHARLESTON AIR FORCE BASE, CHARLESTON, SOUTH CAROLINA. THE FIRM INITIALLY SOUGHT TO DELAY THE SCHEDULED JULY 6, 1983, BID OPENING PENDING A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION'S (SBA) SIZE APPEALS BOARD OF WHETHER THE SIZE STANDARD USED BY THE AIR FORCE WAS PROPER.

WE DISMISS THE PROTEST.

THE AIR FORCE ISSUED THE SOLICITATION ON MAY 20, 1983, WITH A SMALL BUSINESS SIZE STANDARD OF $7.5 MILLION. ON JUNE 22, THE AIR FORCE ISSUED AN AMENDMENT THAT CHANGED THE SIZE STANDARD TO $2 MILLION. BIDS WERE OPENED ON JULY 6, BUT NO AWARD HAS BEEN MADE. APEX CONTENDS THAT SINCE THE CHANGE IN SIZE STANDARD AFFECTS THE ELIGIBILITY OF POTENTIAL BIDDERS, IT CONSTITUTES A NEW ISSUANCE OF THE SOLICITATION.

OUR OFFICE HAS NO AUTHORITY TO ORDER THE WITHHOLDING OF AN AWARD OR TO REQUIRE THAT PROCUREMENT PROCEEDINGS BE DELAYED OR SUSPENDED. SEE CONTRACT SERVICES CO., INC., B-210551, FEBRUARY 22, 1983, 83-1 CPD 176. DEFENSE ACQUISITION REGULATION SEC. 1-703(C)(3) STATES THAT IF THE SIZE APPEALS BOARD DETERMINES THAT THE SIZE STANDARD SHOULD BE CHANGED, AND THE CONTRACTING OFFICER RECEIVES THE RULING BEFORE BID OPENING, THE SOLICITATION MUST BE MODIFIED TO REFLECT THE RULING. HOWEVER, THERE IS NO REQUIREMENT FOR ISSUANCE OF A NEW SOLICITATION.

IF THE RULING IS RECEIVED AFTER BID OPENING, THEN DAR PROVIDES THAT THE RULING DOES NOT APPLY TO THE CURRENT PROCUREMENT BUT ONLY TO PROSPECTIVE ONES, SO THAT IT DOES NOT AFFECT THE LEGALITY OF THE AWARD. ID. WE NOTE THAT THE CONTRACTING OFFICER MAY EXTEND BID OPENING DATE PENDING RESOLUTION OF AN APPEAL, BUT THE DECISION WHETHER TO DO SO IS A MATTER WITHIN HIS BROAD DISCRETION. SEE BAIRD CORPORATION, B-210136, DECEMBER 20, 1982, 82-2 CPD 556. HERE, BID OPENING ALREADY HAS OCCURRED; THEREFORE, ANY DETERMINATION BY THE SIZE APPEALS BOARD WILL APPLY ONLY TO FUTURE PROCUREMENTS.

THE PROTEST IS DISMISSED.