B-175286, APR 21, 1972

B-175286, APR 21, 1972

BID PROTEST - TOTAL SMALL BUSINESS SET-ASIDE - AWARD PRIOR TO TIMELY APPEAL DECISION DENYING THE PROTEST OF PARKHILL-GOODLOE COMPANY, INC., AGAINST AWARD OF A TOTAL SMALL BUSINESS SET-ASIDE TO J. A. LAPORTE, INC., UNDER AN IFB ISSUED BY THE ARMY CORPS OF ENGINEERS, FOR DREDGING AND BEACH NOURISHMENT PROJECT AT CANAVERAL HARBOR, FLA. THE PROTEST MUST BE DENIED SINCE THE PROVISIONS OF ASPR 1-703(B)(4) DO NOT REQUIRE THE WITHHOLDING OF AN AWARD DURING THE PERIOD ALLOWED FOR APPEAL TO THE SIZE APPEALS BOARD UNLESS THE

TO SMITH, CURRIE & HANCOCK:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1972, PROTESTING ON BEHALF OF PARKHILL-GOODLOE COMPANY, INCORPORATED, AGAINST AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER INVITATION FOR BIDS DACW-17-72-B 0046, ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS, JACKSONVILLE, FLORIDA.

THE SOLICITATION, A TOTAL SMALL BUSINESS SET-ASIDE, WAS FOR A DREDGING AND BEACH NOURISHMENT PROJECT AT CANAVERAL HARBOR, FLORIDA. AT BID OPENING ON FEBRUARY 2, 1972, THE BID OF J. A. LAPORTE, INCORPORATED, WAS FOUND TO BE LOW, WHILE PARKHILL-GOODLOE'S BID WAS SECOND LOW. YOUR CLIENT THEN PROTESTED AWARD TO LAPORTE ON THE GROUND THAT LAPORTE DID NOT QUALIFY AS A SMALL BUSINESS CONCERN. THE PROTEST WAS REFERRED BY THE CONTRACTING OFFICER TO THE PHILADELPHIA REGIONAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION (SBA). ON FEBRUARY 16, 1972, THE SBA REGIONAL OFFICE HELD THAT LAPORTE WAS A SMALL BUSINESS CONCERN AND NOTIFIED PARKHILL-GOODLOE AND THE CONTRACTING OFFICER OF THIS DECISION ON FEBRUARY 17, 1972.

THE CONTRACTING OFFICER, ACTING PURSUANT TO ASPR 1-703(B)(3), MADE AWARD TO THE LOW BIDDER ON FEBRUARY 18, 1972. PARKHILL-GOODLOE, WHICH FORMALLY APPEALED THE SBA DECISION TO THE SIZE APPEALS BOARD IN WASHINGTON ON FEBRUARY 22, 1972, RECEIVED NOTICE OF THE CONTRACT AWARD ON FEBRUARY 23, 1972.

ESSENTIALLY, IT IS YOUR POSITION THAT AWARD SHOULD NOT HAVE BEEN MADE PRIOR TO THE EXPIRATION OF THE 5 DAY APPEAL PERIOD AUTHORIZED BY SBA REGULATIONS AND ASPR 1-703(B)(4). YOU CLAIM THAT THE AWARDING OF A CONTRACT DURING THE APPEAL PERIOD WAS A PRECIPITOUS ACTION BY THE CORPS.

ASPR 1-703(B)(3) STATES THAT:

"THE SBA DISTRICT DIRECTOR WILL DETERMINE THE SMALL BUSINESS STATUS OF THE QUESTIONED BIDDER OR OFFEROR AND NOTIFY THE CONTRACTING OFFICER AND THE BIDDER OR OFFEROR OF HIS DETERMINATION, AND AWARD MAY BE MADE ON THE BASIS OF THAT DETERMINATION. THIS DETERMINATION IS FINAL UNLESS IT IS APPEALED IN ACCORDANCE WITH (4) BELOW, AND THE CONTRACTING OFFICER IS NOTIFIED OF THE APPEAL PRIOR TO AWARD. IF AN AWARD WAS MADE PRIOR TO THE TIME THE CONTRACTING OFFICER RECEIVED NOTICE OF THE APPEAL, THE CONTRACT SHALL BE PRESUMED TO BE VALID *** ."

ASPR 1-703(B)(4), PROVIDES FOR AN APPEAL WITHIN 5 WORKING DAYS FROM A SIZE DETERMINATION MADE BY AN SBA DISTRICT DIRECTOR AND STATES IN PART THAT UNLESS " *** THE CONTRACTING OFFICER HAS BEEN NOTIFIED OF SUCH APPEAL PRIOR TO AWARD, THE APPELLANT WILL BE DEEMED TO HAVE WAIVED ITS RIGHTS OF APPEAL INSOFAR AS THE PENDING PROCUREMENT IS CONCERNED."

IT IS CLEAR THAT A PARTY AGGRIEVED BY A DECISION OF THE SBA REGIONAL OFFICE CAN APPEAL TO THE SIZE APPEALS BOARD IF HE DOES SO WITHIN 5 WORKING DAYS. HOWEVER, NEITHER THE LAW NOR THE APPLICABLE REGULATIONS REQUIRE THE WITHHOLDING OF AN AWARD FOR ANY PERIOD ONCE THE SBA REGIONAL DIRECTOR MAKES HIS DETERMINATION, UNLESS THE CONTRACTING OFFICER IS ON NOTICE THAT A TIMELY APPEAL HAS BEEN FILED, AND WE HAVE RECOGNIZED THAT A CONTRACTING OFFICER PROPERLY MAY RELY ON A DETERMINATION MADE BY AN SBA REGIONAL OFFICE TO MAKE AN AWARD. B 167223, SEPTEMBER 4, 1969, AND DECEMBER 21, 1970. SEE ALSO MID-WEST CONSTRUCTION, LTD. V UNITED STATES, 181 CT. CL. 774 (1967), AND 49 COMP. GEN. 702, 704 (1970). WHILE THE VALIDITY OF THE AWARD WOULD NOT HAVE BEEN AFFECTED IF YOUR CLIENT'S POSITION HAD BEEN UPHELD BY THE SIZE APPEALS BOARD, SEE MID-WEST CONSTRUCTION, LTD. V UNITED STATES, SUPRA, WE HAVE BEEN INFORMALLY ADVISED BY THE SMALL BUSINESS ADMINISTRATION THAT THE APPEAL WAS DENIED ON MARCH 15, 1972.

FURTHERMORE, WE ARE ADVISED BY THE CONTRACTING OFFICER THAT WORK ON THE CANAVERAL HARBOR DREDGING PROJECT SHOULD BE STARTED AS SOON AS POSSIBLE. HIS REPORT STATES:

" *** THE WORK INVOLVES THE REMOVAL OF SHOALS FROM BUSY NAVIGATION CHANNELS IN THE HARBOR WHICH SERVES THE SPACE PROGRAM EFFORTS OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION BASE AT CAPE KENNEDY AND THOSE OF PATRICK AIR FORCE BASE. PROMPT RESTORATION OF THESE CHANNELS HAS BEEN URGED BY THE UNITED STATES NAVY, AS LARGE PORTIONS OF THESE CHANNELS HAVE FILLED IN TO AN EXTENT WHICH POSES A SERIOUS THREAT OF GROUNDING TO THE LARGER VESSELS USING THE HARBOR. THAT THE GOVERNMENT'S BEST INTERESTS REQUIRE A SPEEDY COMMENCEMENT OF THIS PROJECT CANNOT BE TOO STRONGLY EMPHASIZED."

THEREFORE, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER ACTED ARBITRARILY OR OTHERWISE IMPROPERLY IN MAKING AN AWARD PROMPTLY AFTER HE RECEIVED NOTICE OF THE SBA REGIONAL OFFICE'S SIZE DETERMINATION.

ACCORDINGLY, YOUR PROTEST AND REQUEST FOR ASSISTANCE IN PROTECTING YOUR CLIENT'S APPEAL RIGHTS MUST BE DENIED.