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B-138415, SEP. 24, 1959

B-138415 Sep 24, 1959
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THE FACTS ARE NOT IN DISPUTE. WAS DETERMINED BY PROPER AUTHORITY TO BE A 100 PERCENT (100 PERCENT) SET-ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION. THE INVITATION FOR BIDS CONTAINED THE REQUIRED NOTICE THAT BIDS WERE SOLICITED ONLY FROM SMALL BUSINESS CONCERNS (DEFINED IN THE NOTICE) AND THAT BIDS SUBMITTED BY FIRMS NOT SMALL BUSINESS WOULD BE CONSIDERED NONRESPONSIVE. AMERICAN ANCHOR AND CHAIN CORPORATION SUBMITTED A BID WITH THE APPROPRIATE BLANKS MARKED INDICATING THAT IT IS A SMALL BUSINESS CONCERN AND THAT IT HAS NOT BEEN DENIED A SMALL BUSINESS CERTIFICATE BY THE SMALL BUSINESS ADMINISTRATION. BIDS WERE OPENED ON OCTOBER 28. THE LOWEST BIDDER WAS DISQUALIFIED. IT WAS NOT UNTIL APRIL 28.

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B-138415, SEP. 24, 1959

TO THE SECRETARY OF THE ARMY:

THE POWELL ANCHOR AND CHAIN COMPANY FILED A PROTEST HERE TO THE AWARD MADE TO AMERICAN ANCHOR AND CHAIN CORPORATION PURSUANT TO INVITATION FOR BIDS NO. DA-ENG-11-184-59-C/D-175JD, AND THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) FORWARDED A REPORT ON THE MATTER IN RESPONSE TO OUR REQUEST. THE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER THE CONTRACT WITH AMERICAN ANCHOR AND CHAIN CORPORATION SHOULD BE CANCELED.

THE FACTS ARE NOT IN DISPUTE. ON OCTOBER 3, 1958, THE UNITED STATES ARMY ENGINEER PROCUREMENT OFFICE, CORPS OF ENGINEERS, CHICAGO, ISSUED THE SUBJECT INVITATION FOR BIDS. THIS PROCUREMENT, FOR FURNISHING A QUANTITY OF HOLDFAST CHAINS AND PICKETS, WAS DETERMINED BY PROPER AUTHORITY TO BE A 100 PERCENT (100 PERCENT) SET-ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION. ACCORDINGLY, THE INVITATION FOR BIDS CONTAINED THE REQUIRED NOTICE THAT BIDS WERE SOLICITED ONLY FROM SMALL BUSINESS CONCERNS (DEFINED IN THE NOTICE) AND THAT BIDS SUBMITTED BY FIRMS NOT SMALL BUSINESS WOULD BE CONSIDERED NONRESPONSIVE.

AMERICAN ANCHOR AND CHAIN CORPORATION SUBMITTED A BID WITH THE APPROPRIATE BLANKS MARKED INDICATING THAT IT IS A SMALL BUSINESS CONCERN AND THAT IT HAS NOT BEEN DENIED A SMALL BUSINESS CERTIFICATE BY THE SMALL BUSINESS ADMINISTRATION. BIDS WERE OPENED ON OCTOBER 28, 1958, AND, FOR REASONS NOT HERE MATERIAL, THE LOWEST BIDDER WAS DISQUALIFIED. IT WAS NOT UNTIL APRIL 28, 1959, THAT THE FORMAL CONTRACT WAS SIGNED WITH AMERICAN ANCHOR AND CHAIN CORPORATION. PRIOR TO THAT DATE AND SUBSEQUENT THERETO QUANTITY REQUIREMENTS CHANGED, NECESSITATING A SUPPLEMENTAL AGREEMENT DATED MAY 28, 1959.

ON JUNE 12, 1959, THE POWELL ANCHOR AND CHAIN COMPANY PROTESTED TO THE CORPS OF ENGINEERS THE AWARD MADE TO AMERICAN ANCHOR AND CHAIN CORPORATION ON THE GROUND THAT THE LATTER COMPANY IS AFFILIATED WITH BIG BUSINESS. THAT PROTEST WAS ACCOMPANIED BY A COPY OF A LETTER DATED MAY 13, 1959, FROM THE PROTESTANT TO THE SMALL BUSINESS ADMINISTRATION CONCERNING THE ISSUE UNDER PROTEST. UNDER DATE OF JUNE 29, 1959, THE CONTRACTING OFFICER ADVISED THE PROTESTING BIDDER THAT ACTION WOULD BE WITHHELD PENDING RECEIPT OF THE RULING ON AMERICAN ANCHOR AND CHAIN CORPORATION BY THE SMALL BUSINESS ADMINISTRATION. ALSO BY LETTER OF SAME DATE THE CONTRACTING OFFICER NOTIFIED AMERICAN ANCHOR AND CHAIN CORPORATION OF THE PROTEST AND FURTHER ADVISED THE CONTRACTOR THAT THE STATUS OF THE CONTRACT WOULD BE DETERMINED BY THE FINDINGS OF THE SMALL BUSINESS ADMINISTRATION. ON JUNE 25, 1959, THE SMALL BUSINESS ADMINISTRATION ADVISED THE CORPS OF ENGINEERS THAT AMERICAN ANCHOR AND CHAIN CORPORATION IS NOT A SMALL BUSINESS CONCERN AND THAT IT WAS NOT A SMALL BUSINESS CONCERN AT THE TIME THE BID WAS SUBMITTED AND THE AWARD WAS MADE.

THE SMALL BUSINESS ACT, AS AMENDED, PROVIDES IN PART AS FOLLOWS:

"SEC. 15. TO EFFECTUATE THE PURPOSES OF THIS ACT, SMALL-BUSINESS CONCERNS WITHIN THE MEANING OF THIS ACT SHALL RECEIVE ANY AWARD OR CONTRACT OR ANY PART THEREOF, * * *.'

PURSUANT TO THE UNDERSCORED PORTION IT IS MANDATORY THAT THE AWARD BE MADE TO A SMALL BUSINESS CONCERN. COMPARE 34 COMP. GEN. 115. ACCORDINGLY, THE AWARD AS MADE WAS CONTRARY TO LAW AND THERE IS NO ALTERNATIVE BUT TO CANCEL THE CONTRACT.

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