B-155983, MAR. 4, 1966

B-155983, MAR. 4, 1966

TO BARBEE INSTRUMENT AND GYROSCOPE CO., INC.:

YOUR TELEFAX OF NOVEMBER 22, 1965, AND LETTER OF FEBRUARY 14, 1966, PROTESTED THE ACTION OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) IN ALLOWING TEST EQUIPMENT CORPORATION (TEQUIPCO) TO CONTINUE WORK UNDER CONTRACT NAS 9-4213, NOTWITHSTANDING A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION (SBA) ON SEPTEMBER 28, 1965, THAT TEQUIPCO WAS NOT A SMALL BUSINESS. THAT CONTRACT RESULTED FROM REQUEST FOR PROPOSALS BG831 -25-5-109P, A 100-PERCENT SMALL BUSINESS SET-ASIDE, WHICH HAS BEEN THE SUBJECT OF TWO PREVIOUS LETTERS TO YOU. IN B-155983, DATED MARCH 31, 1965, WE DENIED YOUR PROTEST BASED UPON ALLEGED PROCUREMENT IMPROPRIETIES OF NASA, AND IN B 155983, DATED APRIL 19, 1965, WE ADVISED YOU THAT THE QUESTION OF TEQUIPCO'S SMALL BUSINESS STATUS SHOULD BE FORWARDED TO THE CONTRACTING OFFICER FOR A DETERMINATION BY THE SBA.

WE HAVE BEEN ADVISED THAT AWARD OF THE CONTRACT WAS MADE TO TEQUIPCO AND THE CONTRACT SIGNED ON MARCH 29, 1965, ALTHOUGH YOU DID NOT RECEIVE NOTICE OF THE AWARD UNTIL APRIL 8. ON APRIL 5, 1965, YOU DISCUSSED THE SMALL BUSINESS STATUS OF TEQUIPCO WITH THE CONTRACTING OFFICER AND ON APRIL 9 SENT A LETTER TO HIM IN WHICH YOU "CONFIRMED YOUR PROTEST.' ALTHOUGH THE APPLICABLE REGULATIONS ONLY ALLOW CONSIDERATION OF SIZE STATUS PROTESTS RECEIVED IN WRITING PRIOR TO AWARD, THE CONTRACTING OFFICER FORWARDED YOUR LETTER TO THE SBA FOR A SIZE DETERMINATION. ON APRIL 15, 1965, TEQUIPCO WAS NOTIFIED OF YOUR PROTEST AND WAS REQUESTED TO COMPLETE CERTAIN REQUIRED FORMS, FURNISH CERTAIN INFORMATION AND TO REPLY TO YOUR ALLEGATION OF LARGE BUSINESS STATUS. TEQUIPCO HAD STATED ON ITS PROPOSAL THAT IT WAS A SMALL BUSINESS, WHICH CERTIFICATION WAS APPARENTLY MADE IN GOOD FAITH. ON APRIL 19, IT RETURNED THE FORMS AND REQUIRED INFORMATION, AGAIN CERTIFIED ITSELF TO BE A SMALL BUSINESS BUT STATED THAT SINCE YOUR PROTEST CONTAINED ONLY A CATEGORICAL ALLEGATION, A SPECIFIC REPLY COULD NOT BE MADE. ON APRIL 22, THE SBA ADVISED BOTH YOU AND THE CONTRACTING OFFICER THAT YOUR LETTER WAS CONSIDERED A COMPLAINT RATHER THAN A PROTEST AND HAD NOT BEEN TIMELY FILED. IN VIEW OF ALL THE CONTROVERSY SURROUNDING THE MATTER, THE CONTRACTING OFFICER, ON APRIL 23, REQUESTED SBA TO MAKE A DETERMINATION. ON APRIL 30, 1965, TEQUIPCO WAS CLASSIFIED BY THE SBA AS A SMALL BUSINESS AND, IN MAY, IT BEGAN WORK UNDER THE CONTRACT. YOU APPEALED THE SIZE DETERMINATION ON MAY 4, 1965.

DURING THE APPEAL, IT WAS DISCOVERED THAT THE INFORMATION SUBMITTED BYTE EQUIP CO WAS INCOMPLETE AND PARTLY ERRONEOUS. ALTHOUGH NO BAD FAITH WAS IMPUTED TO TEQUIPCO, IT WAS DETERMINED BY THE SBA, UPON APPEAL, TO BE A LARGE BUSINESS WITH RESPECT TO REQUEST FOR PROPOSALS BG831-25-5 109P, ON SEPTEMBER 28, 1965. AN APPEAL BY TEQUIPCO WAS NOT CONSIDERED IN VIEW OF THE DESIRE ON THE PART OF THE SBA TO BRING FINALITY TO ITS RULINGS; HOWEVER, THE CURRENT STATUS OF TEQUIPCO IS UNDER CONSIDERATION WITH RESPECT TO ANY FUTURE PROCUREMENT. THE AGENCY HAS ADVISED THAT IT WILLABIDE BY THIS NEW DETERMINATION WITH RESPECT TO THE RENEWAL PROVISIONS UNDER THE CURRENT CONTRACT NAS 9-4213.

WE CAN FIND NOTHING IMPROPER WITH THE AWARD TO TEST EQUIPMENT CORPORATION ON MARCH 29, 1965. AT THAT TIME THERE WAS NO PROTEST OF ITS SIZE STATUS, SO THE CONTRACTING OFFICER WAS FREE TO ACCEPT THE REPRESENTATION BY TEQUIPCO THAT IT WAS A SMALL BUSINESS. SEE NASA PR 1.703; 41 COMP. GEN. 252, INFRA. FURTHER, THE AWARD HAD ALREADY BEEN DELAYED ALMOST 2 MONTHS.

THE CONTRACTING OFFICER, HOWEVER, ELECTED TO SUBMIT THE MATTER TO THE SBA FOR A SIZE DETERMINATION. THAT DETERMINATION OF APRIL 30 THAT TEQUIPCO WAS A SMALL BUSINESS WAS CONCLUSIVE AND BINDING ON THE CONTRACTING OFFICER WHEN MADE. 15 U.S.C. 637/B) (6); 38 COMP. GEN. 328; 37 ID. 679. THEREFORE, HAD THE AWARD OF MARCH 29 BEEN WITHHELD UNTIL AFTER SIZE DETERMINATION, IT COULD HAVE BEEN MADE ON APRIL 30, BASED SOLELY ON THE SBA SIZE DETERMINATION, AND NOTWITHSTANDING THE FILING OF YOUR APPEAL ON MAY 4. IN THIS CONNECTION, SEE B-148911, DATED JULY 12, 1962, WHERE, PURSUANT TO A SIZE PROTEST OF THE SECOND LOW BIDDER, THE SBA ON MAY 4, 1962, DETERMINED THE SUCCESSFUL BIDDER TO BE A SMALL BUSINESS AND AN AWARD WAS MADE ON MAY 8, WITH AN APPEAL FILED ON MAY 11. WE SAID THAT THERE WAS NOTHING IN THE APPLICABLE PROCUREMENT REGULATIONS OR THOSE OF THE SBA THAT REQUIRED A STAY IN THE AWARD PROCEEDINGS PENDING THE OUTCOME OF AN APPEAL TO THE SIZE APPEALS BOARD. SEE, ALSO, IN THIS CONNECTION B-155934, DATED MARCH 16, 1965; B-154428, DATED AUGUST 3, 1964; B-151954, DATED SEPTEMBER 10, 1963.

AS TO THE SUBSEQUENT REVERSAL ON SEPTEMBER 28, 1965, THIS SITUATION IS ALSO NOT NEW TO OUR OFFICE. IN 41 COMP. GEN. 252, WE CONSIDERED A CASE WHERE AN AWARD WAS MADE ON THE BASIS OF A GOOD FAITH SELF CERTIFICATION, AND A MONTH LATER THE SBA DETERMINED THE SUCCESSFUL BIDDER TO BE A LARGE BUSINESS. THERE, AS IN OUR CASE, THE SIZE PROTEST WAS MADE AFTER AWARD. WE HELD AS FOLLOWS:

"* * * 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 FROM THE RECORD BEFORE US THAT THE SELF-CERTIFICATION BY DAWSON, JOHNSON AND KIBLER WAS IN FULL FORCE ON THE DATE OF AWARD. FURTHERMORE, THERE IS NO EVIDENCE TO INDICATE THAT DAWSON, JOHNSON AND KIBLER WAS IMPRUDENT OR LACKING IN GOOD FAITH WHEN IT CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN * * *. THUS, THE AWARD WAS MADE STRICTLY IN ACCORDANCE WITH THE APPLICABLE REGULATIONS.

"FURTHERMORE, IN THE ABSENCE OF A PROTEST PRIOR TO AWARD FROM OTHER BIDDERS WHO WERE INTERESTED IN THE PROCUREMENT, 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. B-137689, JANUARY 21, 1959. * * *"

WE CONCLUDED THAT IT WOULD BE INEQUITABLE AND WOULD SERVE NO USEFUL PURPOSE TO REQUIRE CANCELLATION OF A CONTRACT AWARDED TO A BIDDER WHO CERTIFIED, IN GOOD FAITH, THAT IT WAS A SMALL BUSINESS.

HERE, MORE THAN TWO-THIRDS OF THE CONTRACT PERIOD HAS EXPIRED, AND IN VIEW OF THIS AND OUR ABOVE-CITED PRECEDENTS, WE CAN FIND NO VALID REASON FOR DISTURBING THE AWARD.