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B-221027.2, JAN 23, 1986, OFFICE OF GENERAL COUNSEL

B-221027.2 Jan 23, 1986
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IT WAS THE LOW BIDDER. WAS FOUND NOT TO BE A SMALL BUSINESS CONCERN BY THE SMALL BUSINESS ADMINISTRATION'S (SBA) CHICAGO REGIONAL OFFICE. DRCC CONTENDED THAT IT WAS IMPROPER FOR THE ARMY TO MAKE AWARD TO ANOTHER BIDDER UNDER THE IFB WHILE DRCC'S APPEAL OF THE DECISION BY THE SBA THAT DRCC WAS NOT A SMALL BUSINESS CONCERN WAS PENDING. WHICH REQUIRES THAT A COPY OF THE PROTEST BE FURNISHED TO DESIGNATED CONTRACTING AGENCY PERSONNEL BY THE PROTESTER NOT LATER THAN 1 DAY AFTER THE PROTEST IS FILED AT GAO. THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION IN JENSEN CORP. WHERE WE CONSIDERED A PROTEST THAT ALSO INVOLVED THE CONTENTION THAT IT WAS IMPROPER FOR A CONTRACTING AGENCY TO MAKE AWARD WHILE AN SBA REGIONAL OFFICE SIZE STATUS DETERMINATION WAS PENDING ON APPEAL BEFORE THE SBA OFFICE OF HEARINGS AND APPEALS.

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B-221027.2, JAN 23, 1986, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE BOB MCEWEN:

HOUSE OF REPRESENTATIVES

IN YOUR LETTER OF DECEMBER 2, 1985, YOU REQUESTED INFORMATION CONCERNING THE PROTEST OF DRCC CONSTRUCTION CO., INC. (DRCC), FILED BY ITS ATTORNEY, MR. THOMAS J. HARRINGTON, UNDER INVITATION FOR BIDS (IFB) NO. DACA-27-85-B -0004, A SMALL BUSINESS SET-ASIDE, ISSUED BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, FOR THE CONSTRUCTION OF AN ADDITION TO THE AIR FORCE MUSEUM AT WRIGHT-PATTERSON AIR FORCE BASE.

OUR OFFICE RECEIVED THE DRCC PROTEST ON NOVEMBER 7, 1985. ACCORDING TO DRCC, IT WAS THE LOW BIDDER, BUT WAS FOUND NOT TO BE A SMALL BUSINESS CONCERN BY THE SMALL BUSINESS ADMINISTRATION'S (SBA) CHICAGO REGIONAL OFFICE, AND DRCC SUBSEQUENTLY FILED AN APPEAL TO THE SBA'S OFFICE OF HEARINGS AND APPEALS. IN ITS PROTEST, DRCC CONTENDED THAT IT WAS IMPROPER FOR THE ARMY TO MAKE AWARD TO ANOTHER BIDDER UNDER THE IFB WHILE DRCC'S APPEAL OF THE DECISION BY THE SBA THAT DRCC WAS NOT A SMALL BUSINESS CONCERN WAS PENDING.

HOWEVER, ON NOVEMBER 18, 1985, 11 DAYS AFTER WE RECEIVED THE DRCC PROTEST, THE ARMY NOTIFIED OUR OFFICE THAT IT HAD NOT RECEIVED A COPY OF DRCC'S PROTEST. THEREFORE, ON THAT DATE, WE DISMISSED DRCC'S PROTEST PURSUANT TO OUR BID PROTEST REGULATIONS BECAUSE DRCC FAILED TO COMPLY WITH 4 C.F.R. SEC. 21.1(D) (1985), WHICH REQUIRES THAT A COPY OF THE PROTEST BE FURNISHED TO DESIGNATED CONTRACTING AGENCY PERSONNEL BY THE PROTESTER NOT LATER THAN 1 DAY AFTER THE PROTEST IS FILED AT GAO. SEE GILBERT-TUCKER ASSOCIATES, INC.-- REQUEST FOR RECONSIDERATION, B-220731.2, NOV. 12, 1985, 85-2 CPD PARA. 541.

WHILE WE DISMISSED THE PROTEST FOR THE REASON INDICATED, THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION IN JENSEN CORP., B-220770, B-220771, OCT. 21, 1985, 85-2 CPD PARA. 434, WHERE WE CONSIDERED A PROTEST THAT ALSO INVOLVED THE CONTENTION THAT IT WAS IMPROPER FOR A CONTRACTING AGENCY TO MAKE AWARD WHILE AN SBA REGIONAL OFFICE SIZE STATUS DETERMINATION WAS PENDING ON APPEAL BEFORE THE SBA OFFICE OF HEARINGS AND APPEALS. IN THE JENSEN DECISION, WE STATED THAT THE ONLY LIMITATION ON THE CONTRACTING OFFICER'S AUTHORITY TO MAKE AWARD WHEN SIZE STATUS IS CHALLENGED APPLIES WHEN THE SIZE STATUS IS FIRST FILED; THEN THE CONTRACTING OFFICER MAY NOT MAKE AN AWARD UNTIL THE SBA REGIONAL ADMINISTRATOR HAS ISSUED A DETERMINATION OR UNTIL 10 WORKING DAYS AFTER SBA'S RECEIPT OF THE PROTEST, WHICHEVER OCCURS FIRST. AS A RESULT, WE CONCLUDED IN THE JENSEN DECISION THAT IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER TO MAKE AWARD AFTER THE SBA REGIONAL OFFICE'S DECISION WAS ISSUED, BUT BEFORE THE APPEAL WAS RESOLVED, AS WAS DONE IN THE INSTANT PROCUREMENT.

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