B-150678, APR. 1, 1963

B-150678, APR. 1, 1963

TO UNITED CONSTRUCTION COMPANY OF TENNESSEE:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 22, 1963, AND YOUR LETTER DATED MARCH 15, 1963, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ROSS CORPORATION, NEW ORLEANS, LOUISIANA, UNDER INVITATION FOR BIDS NO. ENG-09-133-63-1 ISSUED BY THE DEPARTMENT OF THE ARMY.

THE SUBJECT INVITATION FOR BIDS WHICH ISSUED ON NOVEMBER 8, 1962, WAS SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION. THE INVITATION CALLED FOR THE CONSTRUCTION OF SEWAGE TREATMENT PLANTS AT FORT BENNING, GEORGIA. BIDS WERE OPENED ON DECEMBER 18, 1962. FOUR BIDS WERE RECEIVED AS FOLLOWS:

TABLE

THE ROSS CORPORATION $1,441,893.85

UNITED CONSTRUCTION COMPANY OF TENNESSEE 1,483,316.90

S. J. CURRY AND COMPANY 1,522,501.20

DEEP SOUTH CONSTRUCTION CO. 1,742,749.90

THE ROSS CORPORATION CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN. AWARD OF THE CONTRACT WAS MADE TO THAT CORPORATION ON JANUARY 10, 1963, AND NOTICE TO PROCEED WAS SENT TO THE CONTRACTOR ON JANUARY 31, 1963.

IT IS REPORTED BY THE DEPARTMENT OF THE ARMY THAT AN ORAL PROTEST WAS MADE TO THE OFFICE OF THE CONTRACTING OFFICER BY MR. EDWARD LEVINE OF YOUR COMPANY ON JANUARY 21, 1963. IN YOUR TELEGRAM TO US DATED JANUARY 22, 1963, YOU ALLEGE THAT THE ROSS CORPORATION AND VICTORY ELECTRIC CORPORATION HAVE THE SAME OWNERSHIP. YOU FURTHER ALLEGE THAT THE ANNUAL SALES OF THE ROSS CORPORATION AS OF NOVEMBER 20, 1962, WERE $3,696,551 AND THOSE OF VICTORY ELECTRIC AS OF FEBRUARY 19, 1962, WERE $6,626,872. YOU CONCLUDE THAT THE ROSS CORPORATION IS, THEREFORE, NOT A SMALL BUSINESS CONCERN AND SHOULD NOT HAVE BEEN AWARDED THE CONTRACT.

IN ITS ORIGINAL REPORT TO US OF FEBRUARY 14, 1963, THE DEPARTMENT OF THE ARMY INFORMED US THAT THE QUESTION OF THE SMALL BUSINESS STATUS OF THE ROSS CORPORATION WAS BEING REFERRED BY THE CONTRACTING OFFICER TO THE SMALL BUSINESS ADMINISTRATION. WE HAVE NOW BEEN INFORMED THAT ON MARCH 5, 1963, THE SMALL BUSINESS ADMINISTRATION HAS RULED THAT THE ROSS CORPORATION IS ELIGIBLE AS A SMALL BUSINESS CONCERN FOR AWARD OF THE SUBJECT CONTRACT.

SECTION 637 (B) (6), TITLE 15, U.S.C. PROVIDES, IN SUBSTANCE, THAT THE SMALL BUSINESS ADMINISTRATION IS EMPOWERED TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS. THAT SECTION FURTHER PROVIDES THAT OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATION AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS. AS NOTED ABOVE, THE ROSS CORPORATION HAS BEEN DETERMINED TO BE A SMALL BUSINESS CONCERN. IN VIEW OF THE PROVISIONS OF 15 U.S.C. 637 (B) (6) SUCH DETERMINATION IS CONCLUSIVE. IT FOLLOWS THAT THE AWARD OF A CONTRACT TO THE ROSS CORPORATION UNDER THE SUBJECT INVITATION WAS PROPER AND IN ACCORDANCE WITH APPLICABLE LAW. ACCORDINGLY, WE MUST ADVISE THAT OUR OFFICE HAS NO LEGAL BASIS UPON WHICH TO QUESTION THE AWARD AND YOUR PROTEST IS DENIED.