B-152295, DEC. 10, 1963

B-152295, DEC. 10, 1963

TO BLOCKSON AND COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED AUGUST 16, 1963, AND CONFIRMING LETTER ALSO DATED AUGUST 16, 1963, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT BY THE RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, TO THE CHICAGO CURLED HAIR COMPANY UNDER INVITATION FOR BIDS NO. AMC-/M/41- 117-64-0008 TOB. RECEIPT ALSO IS ACKNOWLEDGED OF YOUR LETTERS DATED SEPTEMBER 6, 1963, WITH ENCLOSURE, AND OCTOBER 18, 1963, IN REGARD TO THE MATTER.

THE INVITATION, WHICH WAS ISSUED BY THE DEPOT ON JULY 12, 1963, AND WHICH PROVIDED FOR A SMALL BUSINESS 100 PERCENT TOTAL SET-ASIDE, SOLICITED BIDS FOR 2,985 SHEETS OF A CERTAIN TYPE OF CUSHIONING MATERIAL. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION IN THE UNIT AMOUNTS OF $1.50 LESS 5 PERCENT, 20 DAYS; $1.53 NET, 30 DAYS; $2.23 NET, 30 DAYS; AND $2.25 LESS 1 PERCENT, 20 DAYS. EACH OF THE FOUR BIDS CONTAINED A SELF-CERTIFICATION BY THE RESPECTIVE BIDDER AS TO ITS SMALL BUSINESS QUALIFICATION AND THE CHICAGO CURLED HAIR COMPANY WAS THE LOW BIDDER. AN AWARD OF CONTRACT WAS MADE TO THIS COMPANY ON AUGUST 1, 1963, AT ITS BID PRICE OF $1.50 FOR EACH SHEET OF CUSHIONING OR IN THE TOTAL AMOUNT OF $4,477.50. THIS ACTION RESULTED IN THE RECEIPT BY THE DEPOT'S CONTRACTING OFFICER OF A PROTEST DATED AUGUST 9, 1963, FROM YOU AS THE SECOND LOW BIDDER.

YOU PROTEST THE AWARD OF THE CONTRACT ON THE BASIS THAT THE CHICAGO CURLED HAIR COMPANY DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN. YOU REFER TO A DETERMINATION MADE TWO YEARS AGO BY THE SMALL BUSINESS ADMINISTRATION (SBA) THAT THIS COMPANY DID NOT QUALIFY AS A SMALL BUSINESS FOR PROCUREMENT PURPOSES AND STATE THAT IN VIEW OF THIS THE CERTIFICATION OF THE CHICAGO CURLED HAIR COMPANY UNDER THE SUBJECT INVITATION THAT IT WAS SMALL BUSINESS WOULD SEEM TO HAVE BEEN A FALSE DECLARATION.

PARAGRAPH 1-703 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES AS FOLLOWS:

"1-703 DETERMINATION OF STATUS AS SMALL BUSINESS CONCERN.

"/A) EXCEPT AS PROVIDED IN (B) BELOW, THE CONTRACTING OFFICER SHALL ACCEPT AT FACE VALUE (I) A SMALL BUSINESS CERTIFICATE (SEE 1-701.1 (E) ( THAT A BIDDER OR OFFEROR IS A SMALL BUSINESS CONCERN OR (II) A STATEMENT BY THE BIDDER OR OFFEROR THAT (IT) IS A SMALL BUSINESS CONCERN (SEE 1- 701.1 AND 1-701.4).

"/B) SMALL BUSINESS CERTIFICATION AND STATEMENTS THAT A BIDDER OR OFFEROR IS A SMALL BUSINESS CONCERN SHALL BE EFFECTIVE, EVEN THOUGH QUESTIONED IN ACCORDANCE WITH THE TERMS OF THIS SUBPARAGRAPH (B), UNLESS THE SBA, IN RESPONSE TO SUCH QUESTION AND PURSUANT TO THE PROCEDURES IN (3) BELOW, DETERMINES THAT THE BIDDER OR OFFEROR IN QUESTION IS NOT A SMALL BUSINESS CONCERN. THE CONTROLLING POINT IN TIME FOR A DETERMINATION CONCERNING THE SIZE STATUS OF A QUESTIONED BIDDER OR OFFEROR SHALL BE THE DATE OF AWARD, EXCEPT THAT NO BIDDER OR OFFEROR SHALL BE ELIGIBLE FOR AWARD AS A SMALL BUSINESS CONCERN UNLESS HE HAS IN GOOD FAITH REPRESENTED HIMSELF AS SMALL BUSINESS PRIOR TO THE OPENING OF BIDS OR CLOSING DATE FOR SUBMISSION OF OFFERS (SEE 2 405 (II) WITH RESPECT TO MINOR INFORMALITIES AND IRREGULARITIES IN BIDS).

"/1) ANY BIDDER OR OFFEROR MAY, PRIOR TO AWARD, QUESTION THE SMALL BUSINESS STATUS OF THE APPARENTLY SUCCESSFUL BIDDER OR OFFEROR BY SENDING A WRITTEN PROTEST TO THE CONTRACTING OFFICER AND TO THE SBA REGIONAL OFFICE FOR THE REGION IN WHICH THE QUESTIONED BIDDER OR OFFEROR HAS HIS PRINCIPAL PLACE OF BUSINESS. * * *"

UNDER THIS REGULATION THE GOVERNMENT CONTRACTING OFFICER WAS REQUIRED TO ACCEPT THE SMALL BUSINESS SELF-CERTIFICATION OF THE CHICAGO CURLED HAIR COMPANY AT FACE VALUE IN THE ABSENCE OF A TIMELY WRITTEN PROTEST BY OTHER INTERESTED BIDDERS. THERE IS NO RECORD HERE OF THE CONTRACTING OFFICER'S RECEIPT OF SUCH A TIMELY WRITTEN PROTEST FROM YOU OR ANY OTHER BIDDER. THE RECORD SHOWS IN THIS REGARD THAT THE AWARD WAS MADE TO THE CHICAGO FIRM ON AUGUST 1, 1963, AND YOUR PROTEST DOES NOT APPEAR TO HAVE BEEN MADE UNTIL AUGUST 9, 1963. MOREOVER, THE RECORD SHOWS THAT BEFORE SUBMITTING THE SMALL BUSINESS SELF-CERTIFICATION THE SALES MANAGER OF THE CHICAGO CURLED HAIR COMPANY VISITED THE RED RIVER ARMY DEPOT AND CONFERRED WITH THE SMALL BUSINESS AND LABOR SURPLUS ADVISOR AT THE DEPOT. AT THAT TIME THE SALES MANAGER WAS ADVISED OF THE PROPER CODE FOR DETERMINING THE SMALL BUSINESS SIZE STANDARD WHICH WAS EFFECTIVE AS OF JULY 1, 1963, AND THAT SUCH CODE SHOWED, AMONG OTHERS, 750 EMPLOYEES. THUS, THERE CAN BE NO DOUBT THAT THE COMPANY MADE EVERY EFFORT TO ACQUAINT ITSELF WITH THE PROPER STANDARDS FOR DETERMINING ITS CURRENT SIZE STATUS PRIOR TO THE SUBMISSION OF ITS SELF-CERTIFICATION AND UNDER SUCH CIRCUMSTANCES THERE IS NO BASIS FOR DETERMINING THAT A FALSE DECLARATION WAS INTENTIONALLY MADE. ALSO, THE RED RIVER ARMY DEPOT REPORTS THAT THE INFORMATION FURNISHED BY THE SMALL BUSINESS AND LABOR SURPLUS ADVISOR TO THE CHICAGO CURLED HAIR COMPANY UPON WHICH ITS SELF-CERTIFICATION WAS BASED WAS FURNISHED IN GOOD FAITH AND WAS BASED ON THE BEST INFORMATION AVAILABLE AT THAT TIME. ALTHOUGH IT SUBSEQUENTLY WAS DETERMINED THAT THE INFORMATION FURNISHED BY THE SMALL BUSINESS ADVISOR WAS INCORRECT, THAT FACT, IN OUR OPINION, WOULD NOT WARRANT OUR OFFICE IN OBJECTING TO THE AWARD OF THE CONTRACT AS MADE TO THE CHICAGO CURLED HAIR COMPANY AND, THEREFORE, YOUR PROTEST IS DENIED.