B-216077, AUG 28, 1984, 84-2 CPD 234

B-216077, AUG 28, 1984, 84-2 CPD 234

CONTRACTS - SMALL BUSINESS CONCERN - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - SIZE DETERMINATION DIGEST: SMALL BUSINESS ADMINISTRATION, NOT THE GENERAL ACCOUNTING OFFICE, HAS THE STATUTORY AUTHORITY TO CONCLUSIVELY DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS.

BILL MCCANN, INC.:

BILL MCCANN, INC. (MCCANN), PROTESTS AWARD OF A CONTRACT TO ANYONE OTHER THAN MCCANN UNDER INVITATION FOR BIDS (IFB) NO. DACA21-84-B-0102 ISSUED BY THE UNITED STATES ARMY (ARMY) FOR AIR-CONDITIONING FAMILY HOUSING UNITS AT FORT BRAGG, NORTH CAROLINA.

MCCANN CONTENDS THAT THE LOW BIDDER FOR THIS CONTRACT DOES NOT MEET THE SMALL BUSINESS SIZE STANDARD SET FORTH IN THE IFB. IN ADDITION, MCCANN ARGUES THAT THE SECOND LOW BID IS NONRESPONSIVE AND THAT THE ARMY THEREFORE SHOULD AWARD THE CONTRACT TO MCCANN.

THE ARMY HAS ADVISED US INFORMALLY THAT THE QUESTION OF WHETHER THE LOW BIDDER MEETS THE SIZE STANDARD IN THE IFB HAS BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA). SINCE THE SBA, NOT THIS OFFICE, HAS THE STATUTORY AUTHORITY TO CONCLUSIVELY DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENTS, 15 U.S.C. SEC. 637(B) (1982); PUTNAM MILLS CORPORATION, B-212037, JULY 5, 1983, 83-2 CPD PARA. 53, WE DISMISS THIS ASPECT OF MCCANN'S PROTEST.

WITH RESPECT TO MCCANN'S ALLEGATION CONCERNING THE SECOND LOW BIDDER, IF THE SBA FINDS THAT THE LOW BIDDER DID NOT MEET THE IFB'S SMALL BUSINESS SIZE STANDARD, THE RESPONSIVENESS OF THE SECOND LOW BID WILL BECOME AN ISSUE. ACCORDINGLY, BY COPY OF THIS DECISION, WE ARE REQUESTING THE CONTRACTING AGENCY TO FURNISH OUR OFFICE A REPORT IN THE EVENT THE LOW BIDDER IS FOUND TO BE A BIG BUSINESS AND THE CONTRACTING OFFICER DECIDES TO MAKE AN AWARD TO THE SECOND LOW BIDDER.