B-155616, JAN. 18, 1965

B-155616, JAN. 18, 1965

TO TECHNER, RUBIN AND SHAPIRO, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR CORRESPONDENCE OF NOVEMBER 13 AND 27, 1964, PROTESTING ON BEHALF OF BORDERS ELECTRONICS SERVICE COMPANY, INCORPORATED, THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. P 1024, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AS A TOTAL SMALL BUSINESS SET-ASIDE.

BIDS WERE OPENED ON AUGUST 28, 1964. A QUESTION WAS RAISED AS TO THE SMALL BUSINESS STATUS OF BORDERS ELECTRONICS, THE LOW BIDDER, AND ON SEPTEMBER 9, 1964, THE MATTER WAS REFERRED TO THE REGIONAL DIRECTOR, SMALL BUSINESS ADMINISTRATION, PHILADELPHIA. BY DECISION OF SEPTEMBER 21, 1964, THE SBA DETERMINED THAT BORDERS ELECTRONICS WAS NOT A SMALL BUSINESS. ACCORDINGLY, THE CONTRACTING OFFICER DECLARED THE FIRM INELIGIBLE FOR AWARD AND ON SEPTEMBER 30 AWARDED A CONTRACT TO METROPOLITAN SECURITY SERVICES, INC., AS THE LOWEST RESPONSIVE, RESPONSIBLE AND ELIGIBLE BIDDER. ON OR ABOUT SEPTEMBER 28, TWO DAYS PRIOR TO THE AWARD, THE CONTRACTING OFFICER WAS ADVISED THAT BORDERS ELECTRONICS HAD APPEALED THE SIZE DETERMINATION.

IN YOUR LETTER OF NOVEMBER 13, 1964, YOU QUESTIONED THE RIGHT OF THE CONTRACTING OFFICER TO MAKE AWARD PRIOR TO FINAL DISPOSITION OF THE APPEAL BEFORE THE SIZE APPEALS BOARD, WASHINGTON, D.C. WE KNOW OF NO PROVISION OF LAW OR OF NASA OR SBA REGULATIONS WHICH REQUIRE THAT CONTRACTS BE HELD IN ABEYANCE PENDING DISPOSITION OF AN APPEAL TO THE SIZE APPEAL BOARD. ABSENT SUCH REQUIREMENT, IT IS OUR VIEW THAT AFTER A SBA SIZE DETERMINATION HAS BEEN RECEIVED BY THE CONTRACTING AGENCY, THE AGENCY MUST DETERMINE WITHIN ITS SOUND DISCRETION, WHETHER THE AWARD SHOULD BE DELAYED PENDING DECISION ON THE APPEAL. B-148911, JULY 12, 1962, B-149664, OCTOBER 3, 1962. IT SHOULD BE NOTED THAT A REQUIREMENT FOR WITHHOLDING AWARD UNTIL ALL APPEAL OPPORTUNITIES HAVE BEEN EXHAUSTED MIGHT DELAY PROCUREMENTS FOR SO LONG AS TO ADVERSELY AFFECT THE OPERATIONS OF THE AGENCY.

ON NOVEMBER 24, 1964, THE SIZE APPEALS BOARD, AFTER HAVING CONSIDERED YOUR APPEAL, UPHELD THE DECISION OF THE PHILADELPHIA REGIONAL OFFICE. SUSTAINING THE EARLIER DECISION THE BOARD SPECIFICALLY FOUND THAT SBA HAD LAWFULLY ACQUIRED JURISDICTION TO DECIDE THE CASE AND THAT BORDERS ELECTRONICS SERVICE COMPANY WAS PROPERLY CONSIDERED INELIGIBLE FOR AWARD. AFTER CAREFUL REVIEW WE FIND NO BASIS TO QUESTION THE CONCLUSIONS EXPRESSED BY THE BOARD.

SINCE A SIZE DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION IS CONCLUSIVE UPON GOVERNMENT PROCUREMENT OFFICERS THE CONTRACTING OFFICER WAS BY LAW PRECLUDED FROM MAKING A VALID AWARD TO YOUR CLIENT. B 149105, JULY 13, 1962. IN VIEW THEREOF, WE FIND NO BASIS TO QUESTION THE ACTION TAKEN BY THE CONTRACTING OFFICER.