B-148475, JUN. 13, 1962

B-148475, JUN. 13, 1962

TO THE WASHINGTON INFORMATION AND INVESTIGATIVE COUNCIL:

BY LETTER DATED MARCH 20, 1962, WITH ENCLOSURES, YOU PROTESTED, ON BEHALF OF THE SAMUEL OLSON MANUFACTURING COMPANY, INC; AGAINST THE AWARD OF A CONTRACT TO THE RAPIDS-STANDARD COMPANY, INC., BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., UNDER INVITATION FOR BIDS NO. 600 458-62.

THE INVITATION, AS AMENDED, REQUESTED BIDS ON A 100 PERCENT SMALL BUSINESS SET-ASIDE FOR CERTAIN QUANTITIES OF CONVEYORS. BIDS WERE RECEIVED AND OPENED ON NOVEMBER 30, 1961, FROM 11 BIDDERS WHO REPRESENTED IN THEIR BIDS THAT THEY WERE SMALL BUSINESS CONCERNS. SINCE RAPIDS- STANDARD SUBMITTED THE LOWEST BID, AWARD WAS MADE TO THAT BIDDER ON DECEMBER 19, 1961. THE OLSON COMPANY, THROUGH YOUR ORGANIZATION PROTESTS AGAINST THE AWARD ON THE BASIS THAT RAPIDS STANDARD WAS A LARGE BUSINESS CONCERN DOMINANT IN ITS FIELD OF OPERATION.

IN RESPONSE TO OUR REQUEST FOR A DETERMINATION AS TO WHETHER RAPIDS STANDARD WAS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF BIDDING ON THIS PROCUREMENT, THE SMALL BUSINESS ADMINISTRATION (SBA) ADVISED THAT "SUBJECT COMPANY WAS NOT A SMALL BUSINESS FOR THE PURPOSE OF BIDDING ON THE ABOVE- MENTIONED PROCUREMENT.'

TITLE 13 OF THE CODE OF FEDERAL REGULATIONS, SECTION 121.3-8 (D), PROVIDES:

"/D) SELF CERTIFICATION BY A SMALL BUSINESS. IN THE SUBMISSION OF A BID OR PROPOSAL ON A GOVERNMENT PROCUREMENT, A CONCERN WHICH MEETS THE CRITERIA OF PARAGRAPHS (A) OR (B) OF THIS SECTION MAY REPRESENT THAT IT IS A SMALL BUSINESS. IN THE ABSENCE OF A WRITTEN PROTEST, SUCH CONCERN SHALL BE DEEMED TO BE A SMALL BUSINESS FOR THE PURPOSE OF THE SPECIFIC GOVERNMENT PROCUREMENT INVOLVED.'

PARAGRAPHS (A) AND (B) REFERRED TO THEREIN DEFINE SMALL BUSINESS CONCERNS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT. AND SECTION 1-703, ASPR, STATES THAT THE CONTRACTING OFFICER SHALL ACCEPT "AT FACE VALUE" THE SMALL BUSINESS REPRESENTATION OF A BIDDER EXCEPT WHERE SBA DETERMINES WITHIN TEN WORKING DAYS AFTER ITS RECEIPT OF PROPER PROTEST FROM AN INTERESTED BIDDER THAT THE SELF-CERTIFIED BIDDER IS NOT A SMALL BUSINESS CONCERN. IT IS FURTHER PROVIDED THEREIN THAT THE PROCUREMENT ACTION SHALL BE SUSPENDED PENDING SBA DETERMINATION OR THE EXPIRATION OF THE TEN-DAY PERIOD, WHICHEVER IS EARLIER.

UNDER THESE REGULATIONS, A CONTRACTING OFFICER IS REQUIRED TO ACCEPT A SMALL BUSINESS SELF-CERTIFICATION AT FACE VALUE IN THE ABSENCE OF A TIMELY WRITTEN PROTEST BY OTHER INTERESTED BIDDERS. IT IS CLEAR THAT THE SELF- CERTIFICATION OF RAPIDS-STANDARD WAS IN FULL FORCE ON THE DATE OF AWARD AND THERE IS NO INDICATION THAT THE CONTRACTING OFFICER WAS ON NOTICE OF THE BUSINESS SIZE OF RAPIDS-STANDARD. IN THIS CONNECTION, THE RECORD SHOWS THAT NO PROTEST WAS LODGED BY ANY INTERESTED BIDDER AND THAT ONLY A NONBIDDER--- YOUR ORGANIZATION ON BEHALF OF THE OLSON COMPANY--- PROTESTED AFTER MORE THAN A MONTH HAD ELAPSED FROM DATE OF AWARD.

WE THEREFORE BELIEVE THAT THE AWARD WAS MADE IN ACCORDANCE WITH THE APPLICABLE PROCUREMENT REGULATIONS SO FAR AS THE SMALL BUSINESS ELIGIBILITY OF RAPIDS-STANDARD WAS CONCERNED. THE PROCUREMENT REGULATIONS PLACE THE PRIMARY BURDEN OF QUESTIONING THE SMALL BUSINESS STATUS OF A PARTICULAR BIDDER ON THE REMAINING BIDDERS AND, TO A LESSER EXTENT, ON THE CONTRACTING OFFICER. ALSO, WE ARE OF THE VIEW THAT, IN THE ABSENCE OF A PROTEST FROM OTHER BIDDERS ON THIS PROCUREMENT, CONTRACT AWARDED IN GOOD FAITH ON THE BASIS OF THE BIDDER'S STATEMENT THAT IT WAS A SMALL BUSINESS CONCERN IS NOT VOID AB INITIO BUT IS, AT THE MOST, VOIDABLE ONLY AT THE OPTION OF THE GOVERNMENT. CF. UNITED STATES V. N.Y. AND PUERTO RICO S.S.CO., 239 U.S. 88.

ACCORDINGLY, AND SINCE THE INTERESTS OF THE GOVERNMENT WOULD NOT BE SERVED BY QUESTIONING THE AWARD OF THE CONTRACT HERE INVOLVED WHICH IS SUBSTANTIALLY COMPLETED, THE PROTEST MUST BE DENIED.