B-169607, JUN. 16, 1970

B-169607, JUN. 16, 1970

CONTRACTS--AWARDS--SMALL BUSINESS CONCERNS--SIZE--CONCLUSIVENESS OF DETERMINATION BIDDER'S PROTEST TO SIZE STATUS OF LOW BIDDER AND TO ITS FAILURE TO SUBMIT CERTAIN DATA REQUIRED BY INVITATION IS DENIED SINCE SMALL BUSINESS ADMINISTRATION'S DETERMINATION THAT SUCCESSFUL BIDDER WAS SMALL BUSINESS CONCERN IS MADE CONCLUSIVE BY STATUTE AND NEITHER GAO NOR PROCURING ACTIVITY MAY IGNORE SUCH DETERMINATION. WHERE REQUIREMENT FOR SUBMISSION OF DATA IS FOR PURPOSE OF DETERMINING CAPACITY OR RESPONSIBILITY OF OFFEROR, FAILURE TO SUBMIT ADEQUATE DATA WITH BID IS NOT FATAL TO CONSIDERATION OF BID, AND SINCE DATA OMITTED PERTAINED TO MATTER OF RESPONSIBILITY RATHER THAN RESPONSIVENESS AWARD WAS PROPER. SEE COMP. GEN. DECS. CITED.

TO PACIFIC HELIUM COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1970, PROTESTING THE AWARD OF A CONTRACT TO THE PACIFIC OXYGEN COMPANY (PACIFIC), OAKLAND, CALIFORNIA, UNDER INVITATION FOR BIDS (IFB) FWB/03600 (7AB) ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FORT WORTH, TEXAS, ON NOVEMBER 19, 1969.

THE INVITATION WAS FOR BIDS ON A FEDERAL SUPPLY SCHEDULE CONTRACT FOR HELIUM FOR THE PERIOD MARCH 1, 1970, THROUGH FEBRUARY 28, 1971. A NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE WAS APPLICABLE TO SEVERAL ITEMS OF THE IFB, AND AWARD WAS MADE TO PACIFIC ON MARCH 20, 1970, FOR THOSE SET-ASIDE ITEMS ON WHICH IT WAS THE LOW RESPONSIVE BIDDER.

YOU CONTEND THAT PACIFIC DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN BECAUSE IT HAS A HELIUM RELATIONSHIP WITH A BIG BUSINESS CONCERN, GARDNER CRYOGENICS CORPORATION, AND THAT PACIFIC'S BID IS NONRESPONSIVE.

REGARDING YOUR CONTENTION THAT PACIFIC DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN, 15 U.S.C. 637(B)(6) AUTHORIZES THE SMALL BUSINESS ADMINISTRATION (SBA) TO DETERMINE WHICH BUSINESS ENTERPRISES ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS AND MAKES ITS DETERMINATION IN THESE MATTERS CONCLUSIVE. SPECIFICALLY THAT SECTION PROVIDES:

" *** OFFICES OF THE GOVERNMENT HAVING PROCUREMENT OR LENDING POWERS, OR ENGAGING IN THE DISPOSAL OF FEDERAL PROPERTY OR ALLOCATING MATERIALS OR SUPPLIES, OR PROMULGATING REGULATIONS AFFECTING THE DISTRIBUTION OF MATERIALS OR SUPPLIES, SHALL ACCEPT AS CONCLUSIVE THE (SMALL BUSINESS ADMINISTRATION'S DETERMINATION AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED 'SMALL BUSINESS CONCERNS' AS AUTHORIZED AND DIRECTED UNDER THIS PARAGRAPH."

THE RECORD INDICATES THAT BY LETTER DATED JANUARY 20, 1970, THE GSA REGIONAL OFFICE IN FORT WORTH, TEXAS, REQUESTED THE SBA TO DETERMINE PACIFIC'S SIZE STATUS FOR THE PURPOSE OF THIS PROCUREMENT ON THE BASIS THAT PACIFIC MIGHT BE PLANNING TO SUBCONTRACT OR OTHERWISE ASSOCIATE WITH GARDNER CRYOGENICS IN PERFORMANCE OF THE CONTRACT. ON FEBRUARY 3, 1970, THE SBA REGIONAL OFFICE IN SAN FRANCISCO, CALIFORNIA, ADVISED GSA THAT PACIFIC QUALIFIED AS A SMALL BUSINESS CONCERN. BY LETTER DATED MARCH 6, 1970, GSA AGAIN EXPRESSED ITS CONCERN THAT PACIFIC MIGHT IN SOME WAY BE AFFILIATED WITH GARDNER CRYOGENICS, AND ASKED THE SBA REGIONAL OFFICE TO RECHECK ITS PREVIOUS DETERMINATION. ON MARCH 11, 1970, SBA NOTIFIED GSA THAT IT HAD AGAIN DETERMINED PACIFIC TO BE A SMALL BUSINESS CONCERN. SINCE THE DECISION OF SBA REGARDING SIZE STATUS OF A COMPANY IS MADE CONCLUSIVE BY STATUTE, NEITHER OUR OFFICE NOR THE PROCUREMENT ACTIVITY INVOLVED MAY IGNORE A DETERMINATION BY SBA AS TO THE SIZE STATUS OF A PARTICULAR CONCERN. B-150757, APRIL 8, 1963. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST ON THIS GROUND.

IN ANY EVENT, SINCE YOU DID NOT PROTEST THE SMALL BUSINESS STATUS OF PACIFIC PRIOR TO AWARD AND WITHIN FIVE WORKING DAYS AFTER BID OPENING, AS REQUIRED BY SECTION 1-1.703-2 OF THE FEDERAL PROCUREMENT REGULATIONS, YOUR PROTEST OF PACIFIC'S SIZE STATUS CAN HAVE NO EFFECT INSOFAR AS THE SUBJECT PROCUREMENT IS CONCERNED.

CONCERNING YOUR CONTENTION THAT PACIFIC'S BID IS NONRESPONSIVE, YOUR ARGUMENT IS THAT THE BID SHOULD BE DISQUALIFIED BECAUSE PACIFIC DID NOT SUPPLY THE NAME OF ITS SUPPLIER, THE NAME AND ADDRESS OF ITS PRODUCTION POINT, AND ITS SHIPPING POINT, AS REQUIRED BY PARAGRAPH 19 OF THE INVITATION.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF THE OFFEROR RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE BIDDER TO SUBMIT ADEQUATE DATA WITH HIS BID FOR SUCH USE IS NOT FATAL TO CONSIDERATION OF THE BID, INASMUCH AS THE BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE BID OPENING. 49 COMP. GEN. (B-168518, MARCH 10, 1970); 39 COMP. GEN. 247 (1959); 39 ID. 881 (1960); 41 ID. 555 (1962). GENERALLY A BID WILL BE CONSIDERED RESPONSIVE IF, UPON ITS ACCEPTANCE, THE BIDDER WOULD BE LEGALLY REQUIRED TO PERFORM THE RESULTING CONTRACT IN STRICT ACCORDANCE WITH ALL THE SPECIFICATIONS AND TERMS OF THE IFB. B-167110, NOVEMBER 4, 1969. PACIFIC'S BID DID NOT DEVIATE FROM, TAKE EXCEPTION TO, OR QUALIFY ANY OF THE SUPPLY REQUIREMENTS OF THE IFB. MOREOVER, AWARDS FOR THE ITEMS INVOLVED WERE TO BE MADE ON A DESTINATION BASIS AND THE INFORMATION REGARDING PRODUCTION AND SHIPPING POINTS WAS NOT REQUIRED FOR PURPOSES OF EVALUATION. THUS, PARAGRAPH 19 CONCERNING SUPPLIERS, PRODUCTION POINTS AND INSPECTION POINTS, PERTAINED TO MATTERS OF RESPONSIBILITY AND NOT RESPONSIVENESS.

ACCORDINGLY, FOR THE REASONS STATED ABOVE, YOUR PROTEST IS DENIED.