B-143630, OCT. 13, 1960

B-143630, OCT. 13, 1960

TO THE ANSONIA WIRE AND CABLE COMPANY:

YOUR TWO TELEGRAMS DATED JULY 28, 1960, PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING CONTRACTS UNDER IFB 30 635-60-427 AND IFB 30-635-60-482 TO PLASTIC WIRE AND CABLE CORPORATION.

IFB 30-635-60-427, AS AMENDED, REQUESTED BIDS ON 50,000 FEET OF 400 CONDUCTOR TELEPHONE CABLE AND IFB 30-635-60-482 REQUESTED BIDS ON 200,000 FEET OF 50 CONDUCTOR TELEPHONE CABLE. THE BID OPENING DATES WERE MAY 17 AND MAY 18, 1960, RESPECTIVELY. PARAGRAPH 27 OF THE BID INVITATIONS PROVIDED THAT THE PROCUREMENTS WOULD BE RESTRICTED TO SMALL BUSINESS CONCERNS AND THAT BIDS OR PROPOSALS RECEIVED FROM FIRMS NOT CLASSIFIED AS SMALL BUSINESS WOULD BE CONSIDERED AS NON-RESPONSIVE.

PLASTIC WIRE AND CABLE CORPORATION WAS LOW BIDDER UNDER BOTH INVITATIONS. IT REPRESENTED ON THE FACE OF ITS BID AND UNDER PARAGRAPH 17 OF IFB 30-635-60-427 THAT IT WAS A SMALL BUSINESS CONCERN. ALSO, IN ITS LETTER BID OF MAY 16, 1960, ON IFB 30-635-60-482 IT STATED THAT IT WAS A SMALL BUSINESS CONCERN. WITH RESPECT TO SUCH REPRESENTATIONS THE DEPUTY FOR PROCUREMENT, DEPARTMENT OF THE AIR FORCE, IN LETTER DATED SEPTEMBER 21, 1960, REPORTED THAT THE PROCURING ACTIVITY HAD BEEN DOING BUSINESS WITH THIS COMPANY FOR THE PAST FOUR YEARS; THAT THE COMPANY ALWAYS HAD BEEN CONSIDERED AS A SMALL BUSINESS; AND THAT THIS CLASSIFICATION HAD NEVER BEEN QUESTIONED.

ON MAY 20, 1960, FOLLOWING OPENING OF THE BIDS, YOUR COMPANY QUESTIONED THE STATUS OF PLASTIC WIRE AND CABLE CORPORATION AS A SMALL BUSINESS CONCERN AS REPRESENTED UNDER ITS BID ON IFB 30-635-60-427. ON MAY 25, 1960, THE NEW YORK REGIONAL OFFICE OF SMALL BUSINESS ADMINISTRATION NOTIFIED THE PROCURING AGENCY THAT THE LOW BIDDER ON THIS INVITATION DID NOT QUALIFY AS A SMALL BUSINESS AND THAT IT WAS NOT ELIGIBLE TO PARTICIPATE IN ANY AWARDS UNDER EITHER OF THE TWO INVITATIONS. THE RECORD ESTABLISHES THAT IN THE MEANTIME PLASTIC WIRE ON MAY 23, 1960, APPLIED TO SMALL BUSINESS ADMINISTRATION FOR A SMALL BUSINESS CERTIFICATE AND THAT ON MAY 31, 1960, PURSUANT TO SUCH APPLICATION AND THE INFORMATION CONTAINED THEREIN, PLASTIC WIRE WAS CERTIFIED AS A SMALL BUSINESS CONCERN INCIDENT TO CONTRACTS FOR PLASTIC INSULATED WIRE AND CABLES, EFFECTIVE AS OF THAT DATE. AWARD OF CONTRACTS ON BOTH INVITATIONS WAS MADE ON JUNE 27, 1960.

IN YOUR FIRST TELEGRAM OF JULY 28, 1960, YOU PROTESTED THE AWARD ON IFB 30-635-60-427 AND IFB 30-635-482 TO PLASTIC WIRE FOR THE REASON THAT THE CERTIFICATION OF THIS COMPANY'S STATUS WAS NOT MADE UNTIL MAY 31, 1960, AND, THEREFORE, YOU CONTENDED THAT ITS BIDS ON THESE TWO ITEMS MADE ON MAY 16 AND MAY 18, 1960, RESPECTIVELY, WERE NOT RESPONSIVE. FOR THESE REASONS YOU REQUEST CANCELLATION OF THE CONTRACTS AND AWARDS TO YOUR COMPANY AS THE LOWEST RESPONSIBLE BIDDER.

SECTION 8 (B) (6) OF THE SMALL BUSINESS ACT, AS AMENDED BY PUBLIC LAW 85- 536, 72 STAT. 384, 390, 15 U.S.C. 637 (B) (6), AUTHORIZES THE SMALL BUSINESS ADMINISTRATION TO DETERMINE WHICH BUSINESS ENTERPRISES ARE TO BE DESIGNATED AS SMALL BUSINESS CONCERNS AND MAKES ITS DETERMINATIONS IN THESE MATTERS CONCLUSIVE. SPECIFICALLY, THAT SECTION PROVIDES THAT "OFFICES OF THE GOVERNMENT * * * SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATION AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED "SMALL-BUSINESS CONCERNS" * * *.'

GENERALLY, THE FINAL DETERMINATION OF THE ELIGIBILITY OF A BIDDER AS A SMALL BUSINESS CONCERN UNDER A SMALL-BUSINESS RESTRICTED INVITATION IS MADE AS OF THE DATE OF AWARD. THE DATE OF AWARD MUST OF NECESSITY FIX AND ESTABLISH THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE CONTRACT, INCLUDING THE LEGAL CAPACITY OF A BIDDER TO RECEIVE AN AWARD WHICH IS RESTRICTED BY STATUTE TO A CERTAIN CLASS OF BIDDERS.

AS STATED IN 38 COMP. GEN. 328, 331, THE PURPOSE OF THE RULE IN FEDERAL PROCUREMENT THAT BIDS MUST BE RESPONSIVE TO THE TERMS OF THE INVITATION IS TO ASSURE THAT THE CONTRACT WILL BE AWARDED UPON THE SAME TERMS THAT WERE OFFERED TO ALL BIDDERS. IT FOLLOWS THAT THE PORTION OF THE TWO INVOLVED INVITATIONS WHICH STATED THAT BIDS "RECEIVED FROM FIRMS NOT CLASSIFIED AS SMALL BUSINESS WILL BE CONSIDERED AS NON-RESPONSIVE" WAS INTENDED SOLELY TO PREVENT AN AWARD TO, AND PERFORMANCE BY, A BIDDER WHO DID NOT MEET THE CRITERIA OF SUCH CLASSIFICATION. THE CERTIFICATE ISSUED BY SMALL BUSINESS ADMINISTRATION ON MAY 31, 1960, WAS CONCLUSIVE ON THAT POINT.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR OBJECTING TO THE AWARDS TO PLASTIC MERELY BECAUSE THE SMALL BUSINESS CERTIFICATE HAD NOT BEEN ISSUED BY THE SMALL BUSINESS ADMINISTRATION AT THE TIME PLASTIC SUBMITTED ITS BIDS.