B-147973, APR. 9, 1962
Highlights
THE SUBJECT INVITATION WAS ISSUED BY THE U.S. THE INVITATION WAS 100 PERCENT RESTRICTED FOR AWARD TO SMALL BUSINESS FIRMS. BIDS WERE OPENED ON DECEMBER 27. 3 BIDS WERE RECEIVED AS FOLLOWS: CHART ITEM NO. 1 2 3 COBEY CORP. $708.76 EA $480.76 EA. $612.00 EA. IT IS REPORTED THAT DEMPSTER CERTIFIED ITSELF AS SMALL BUSINESS. UPON COMPLETION OF THE BID EVALUATION IT WAS DETERMINED THAT DEMPSTER WAS LOW RESPONSIVE BIDDER FOR ITEM NO. 1. N160/249) 29891 WAS AWARDED TO DEMPSTER IN AN AMOUNT OF $6. ALLEGING THAT DEMPSTER IS NOT QUALIFIED AS A SMALL BUSINESS CONCERN FOR PURPOSES OF THIS AWARD. THE SMALL BUSINESS ADMINISTRATION HAS NOT UNDERTAKEN TO MAKE A SIZE DETERMINATION AS TO DEMPSTER AT THIS TIME FOR THE REASON THAT YOUR PROTEST WAS NOT RECEIVED UNTIL AFTER THE AWARD.
B-147973, APR. 9, 1962
TO THE COBEY CORPORATION:
THIS REFERS TO YOUR LETTER OF FEBRUARY 16, 1962, AND PRIOR CORRESPONDENCE, PROTESTING THE CONSIDERATION OF DEMPSTER BROTHERS, INCORPORATED, AS A SMALL BUSINESS CONCERN FOR PURPOSES OF THE AWARD MADE TO IT UNDER INVITATION NO. 160-555-62.
THE SUBJECT INVITATION WAS ISSUED BY THE U.S. NAVY YARDS AND DOCKS SUPPLY OFFICE, PORT HEUNEME, CALIFORNIA, ON NOVEMBER 27, 1961, COVERING 3 ITEMS OF REFUSE CONTAINERS. ITEM NO. 1 CALLED FOR 10 UNITS, ITEM NO. 2 CALLED FOR 1 UNIT AND ITEM NO. 3 FOR 24 UNITS, ALL AS SPECIFIED BY THE INVITATION. THE INVITATION WAS 100 PERCENT RESTRICTED FOR AWARD TO SMALL BUSINESS FIRMS.
BIDS WERE OPENED ON DECEMBER 27, 1961, AND 3 BIDS WERE RECEIVED AS FOLLOWS:
CHART
ITEM NO.
1 2 3 COBEY CORP. $708.76 EA
$480.76 EA. $612.00 EA. DEMPSTER BROS. 669.04 EA. 575.97 EA. 669.54 EA. FALCON ENG. 1.476.00 EA. 977.00 EA. 1,457.00 EA.
IT IS REPORTED THAT DEMPSTER CERTIFIED ITSELF AS SMALL BUSINESS. UPON COMPLETION OF THE BID EVALUATION IT WAS DETERMINED THAT DEMPSTER WAS LOW RESPONSIVE BIDDER FOR ITEM NO. 1. ACCORDINGLY, ON JANUARY 10, 1962, CONTRACT NO. N160/249) 29891 WAS AWARDED TO DEMPSTER IN AN AMOUNT OF $6,690.40.
ON FEBRUARY 12, 1962, THIS OFFICE RECEIVED A PROTEST FROM YOU, ALLEGING THAT DEMPSTER IS NOT QUALIFIED AS A SMALL BUSINESS CONCERN FOR PURPOSES OF THIS AWARD. THE SMALL BUSINESS ADMINISTRATION HAS NOT UNDERTAKEN TO MAKE A SIZE DETERMINATION AS TO DEMPSTER AT THIS TIME FOR THE REASON THAT YOUR PROTEST WAS NOT RECEIVED UNTIL AFTER THE AWARD.
SECTION 1-703 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT A CONTRACTING OFFICER IS REQUIRED TO ACCEPT A SMALL BUSINESS SELF CERTIFICATION AT FACE VALUE IN THE ABSENCE OF A TIMELY WRITTEN PROTEST BY ANOTHER INTERESTED BIDDER. SEE 40 COMP. GEN. 550. A CONTRACT AWARDED IN GOOD FAITH ON THE BASIS OF A BIDDER'S STATEMENT THAT IT IS A SMALL BUSINESS CONCERN IS NOT VOID AB INITIO BUT IS VOIDABLE ONLY AT THE OPTION OF THE GOVERNMENT. SEE B-137689, JANUARY 21, 1959. WE ARE OF THE VIEW THAT THE CANCELLATION OF THE CONTRACT AWARDED TO DEMPSTER IS NOT REQUIRED IN THE ABSENCE OF EVIDENCE THAT DEMPSTER CERTIFIED ITSELF IN BAD FAITH AS A SMALL BUSINESS CONCERN. SEE B-146438, OCTOBER 16, 1961 (PUBLISHED AT 41 COMP. GEN. - ); B-145239, JUNE 26, 1961; ALSO 41 COMP. GEN. 47; 34 COMP. GEN. 115. SINCE A SHOWING OF BAD FAITH HAS NOT BEEN ESTABLISHED IN THE RECORD BEFORE US, WE WILL NOT DISTURB THE AWARD TO DEMPSTER.