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THERE IS NO BASIS TO ALLOW THIS PROTEST. PELLAND & BRAUDE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 3. AT THE TIME THE PROTEST WAS FILED. THE LEGALITY OF THIS PROGRAM WAS BEING LITIGATED. THAT OUR OFFICE WOULD NOT RULE ON THIS ASPECT OF THE PROTEST UNTIL A DEFINITIVE JUDICIAL DECISION WAS REACHED. YOUR PROTEST ON BEHALF OF FORTEC CONSTRUCTORS IS DENIED.

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B-175609, MAR 1, 1973

BID PROTEST - SECTION 8(A) PROGRAM DENIAL OF PROTEST ON BEHALF OF FORTEC CONSTRUCTORS AGAINST THE VALIDITY OF THE SMALL BUSINESS ACT'S SECTION 8(A) MINORITY ENTERPRISE PROGRAM, AND THE PROPOSED AWARD OF A CONTRACT UNDER THE PROGRAM TO THE SBA UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION. SINCE THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, IN THE CASE OF RAY BAILLIE TRASH HAULING, INC. V. KLEPPE, HAS DECLARED THE SECTION 8(A) PROGRAM VALID AND CONSTITUTIONAL, AND ABSENT ANY DIFFERENT RESULT OUTSTANDING IN ANY OTHER CIRCUIT COURT, THERE IS NO BASIS TO ALLOW THIS PROTEST.

TO SADUR, PELLAND & BRAUDE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1972, ON BEHALF OF FORTEC CONSTRUCTORS, PROTESTING, IN PART, THE VALIDITY OF THE SMALL BUSINESS ACT'S SECTION 8(A) MINORITY ENTERPRISE PROGRAM, AND THE PROPOSED AWARD OF A CONTRACT UNDER THE PROGRAM TO THE SMALL BUSINESS ADMINISTRATION (SBA) UNDER IFB NO. WE00-2-0607, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION.

AT THE TIME THE PROTEST WAS FILED, THE LEGALITY OF THIS PROGRAM WAS BEING LITIGATED, AND WE THEREFORE ADVISED YOU IN OUR LETTER OF JUNE 27, 1972, THAT OUR OFFICE WOULD NOT RULE ON THIS ASPECT OF THE PROTEST UNTIL A DEFINITIVE JUDICIAL DECISION WAS REACHED.

ON JANUARY 5, 1973, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RULED, IN THE CASE OF RAY BAILLIE TRASH HAULING INCORPORATED V. KLEPPE, NO. 72-1163, THAT THE SBA MAY ACCEPT CONTRACT AWARDS FROM OTHER GOVERNMENT AGENCIES AND SUBCONTRACT THE WORK TO SOCIALLY OR ECONOMICALLY DISADVANTAGED PERSONS UNDER THE PROCEDURES ADOPTED BY SBA. INASMUCH AS THE COURT OF APPEALS FOR THE FIFTH CIRCUIT HAS DECLARED THE SECTION 8(A) PROGRAM VALID AND CONSTITUTIONAL, AND ABSENT ANY DIFFERENT RESULT OUTSTANDING IN ANY OTHER CIRCUIT COURT, WE FIND NO BASIS TO QUESTION ITS VALIDITY.

ACCORDINGLY, YOUR PROTEST ON BEHALF OF FORTEC CONSTRUCTORS IS DENIED.

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