B-154428, AUG. 3, 1964

B-154428, AUG. 3, 1964

TO WARRIOR CONSTRUCTORS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT TO CARPENTER BROTHERS UNDER INVITATION FOR BIDS NO. ENG/NASA/-01-076-64-39 ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS, MOBILE, ALABAMA, FOR CONSTRUCTION OF THE TEST MAINTENANCE BUILDING AT MISSISSIPPI TEST FACILITY, MISSISSIPPI.

THIS PROCUREMENT WAS SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION AND THE INVITATION SPECIFICALLY PROVIDED THAT "BIDS OR PROPOSALS RECEIVED FROM FIRMS WHICH ARE NOT SMALL BUSINESS CONCERNS SHALL BE CONSIDERED NONRESPONSIVE AND SHALL BE REJECTED.' SIX BIDS, WHICH WERE OPENED AS SCHEDULED ON MAY 6, 1964, WERE RECEIVED IN RESPONSE TO THE INVITATION AND THE LOWEST BID AS TO PRICE WAS SUBMITTED BY WARRIOR CONSTRUCTORS, INC. HOWEVER, THE SECOND LOW BIDDER, CARPENTER BROTHERS, NOTIFIED THE CONTRACTING OFFICER BY LETTER DATED MAY 8, 1964, THAT THEY HAD REASON TO BELIEVE WARRIOR CONSTRUCTORS, INC., NO LONGER QUALIFIED AS A SMALL BUSINESS CONCERN AND REQUESTED A CHECK BE MADE OF ITS STATUS PRIOR TO AWARD OF THE CONTRACT. THE REQUEST WAS PROMPTLY SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR A DETERMINATION AND ON JUNE 3, 1964, THE SIZE STANDARDS DIVISION OF THAT ADMINISTRATION DETERMINED THAT BY REASON OF CERTAIN AFFILIATIONS WITH VARIOUS OTHER CONCERNS, WARRIOR CONSTRUCTORS, INC., WAS NOT A SMALL BUSINESS CONCERN FOR THE PURPOSE OF GOVERNMENT CONSTRUCTION PROCUREMENTS. IT IS REPORTED THAT PRIOR TO THE RECEIPT ON JUNE 4 OF THE SMALL BUSINESS ADMINISTRATION DETERMINATION, THE CONTRACTING OFFICER HAD DECIDED THAT IT WAS NECESSARY TO MAKE AN IMMEDIATE AWARD OF THE CONTRACT IN ORDER TO TIMELY COMPLETE THE ROADS AND PARKING FACILITIES WHICH WERE TO BE CONSTRUCTED THEREUNDER FOR THE SITE MAINTENANCE BUILDING WHICH WAS BEING CONSTRUCTED AT THE FACILITY BY ANOTHER CONTRACTOR. THE SITE MAINTENANCE BUILDING COULD NOT BE OCCUPIED EVEN WHEN COMPLETED UNLESS SUCH ROADS AND PARKING FACILITIES WERE AVAILABLE AND ANY FURTHER DELAY IN AWARD WOULD HAVE RESULTED IN A LAPSE OF TIME BETWEEN THE COMPLETION OF THE BUILDING AND THE COMPLETION OF THE ROADS AND PARKING AREAS. ALSO, FURTHER DELAY OF THE AWARD WAS CONSIDERED DISADVANTAGEOUS TO THE GOVERNMENT AS THE WAGE RATES UNDER WHICH THE WORK WAS ADVERTISED EXPIRED ON JUNE 4, AND SINCE THE NEW RATES WERE SUBSTANTIALLY HIGHER, THE CONTRACTING OFFICER HAD NO ASSURANCE THE LOW BIDDER WOULD ACCEPT THE REVISED WAGE RATES. ACCORDINGLY, TO ADEQUATELY PROTECT THE INTERESTS OF THE GOVERNMENT AWARD OF THE CONTRACT TO CARPENTER BROTHERS WAS MADE ON JUNE 4, WITH THE APPROVAL OF THE OFFICE OF THE CHIEF OF ENGINEERS, EVEN THOUGH THE CONTRACTING OFFICER WAS IN RECEIPT OF YOUR TELEGRAM OF THAT DATE GIVING NOTICE OF YOUR INTENTION TO APPEAL THE SIZE STANDARDS DIVISION'S DETERMINATION. YOUR FIRM WAS SUBSEQUENTLY ADVISED BY LETTER DATED JUNE 8 THAT ITS BID WAS REJECTED AS NONRESPONSIVE.

YOU STATE THAT NOTICE OF APPEAL OF THE DETERMINATION MADE BY THE SIZE STANDARDS DIVISION WAS FILED WITH THE SMALL BUSINESS ADMINISTRATION SIZE APPEALS BOARD, BY LETTER OF JUNE 6, 1964, AND THAT YOU STRONGLY PROTEST THE AWARDING OF THE CONTRACT PRIOR TO THE APPEAL HEARING, AND IN DISREGARD OF THE POINTS SET FORTH IN YOUR APPEAL.

WE HAVE NOW RECEIVED FROM THE SMALL BUSINESS ADMINISTRATION A COPY OF THE FINDINGS AND DECISION OF THE SIZE APPEALS BOARD, DATED JUNE 19, 1964, DENYING YOUR APPEAL.

UNDER 15 U.S.C. 637 (B) (6), THE SMALL BUSINESS ADMINISTRATION IS AUTHORIZED TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS OF WHICH ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS. THAT SECTION FURTHER PROVIDES THAT OFFICES OF THE GOVERNMENT HAVING PROCUREMENT POWERS SHALL ACCEPT AS CONCLUSIVE THE ADMINISTRATION'S DETERMINATIONS AS TO WHICH ENTERPRISES ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS. HENCE, THE SMALL BUSINESS ADMINISTRATION DETERMINATION IN YOUR CASE IS BINDING ON OUR OFFICE, 38 COMP. GEN. 328, 331. CONCERNING THE TIME OF THE AWARD, IT WOULD APPEAR THAT COMPELLING REASONS, AS STATED ABOVE, EXISTED FOR MAKING THE AWARD WITHOUT FURTHER DELAY; THAT SUCH AWARD WAS AUTHORIZED AND APPROVED IN ACCORDANCE WITH APPLICABLE REGULATIONS; AND THAT THERE IS NO REQUIREMENT IN LAW OR REGULATIONS THAT THE CONTRACTING OFFICER HOLD UP AWARD PENDING APPEAL OF A SMALL BUSINESS ADMINISTRATION DECISION TO THE SMALL BUSINESS ADMINISTRATION SIZE APPEALS BOARD (B-148911, JULY 12, 1962).

ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT OUR OFFICE HAS A LEGAL BASIS UPON WHICH TO QUESTION THE AWARD, AND YOUR PROTEST IS THEREFORE DENIED.