B-176191, DEC 5, 1972

B-176191, DEC 5, 1972

BID PROTEST - SUSPENSION OF AWARD - SIZE APPEAL DECISION DENYING THE PROTEST OF OLD ATLANTIC SERVICES, INC., AGAINST AWARD OF A CONTRACT TO KLEEN-RITE JANITORIAL SERVICES, INC., UNDER AN IFB ISSUED BY THE ATLANTA ARMY DEPOT, FOREST PARK, GA., FOR CUSTODIAL SERVICES AT THE DEPOT. ALTHOUGH ASPR 1-703(B)(3)(IV) PROVIDES FOR SUSPENSION OF PROCUREMENT ACTION WHILE AN APPEAL IS BEFORE THE SIZE APPEALS BOARD, SUCH SUSPENSION NEED NOT BE MADE IF THE CONTRACTING OFFICER DETERMINES THAT AWARD MUST BE MADE WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST. ACCORDINGLY, IN VIEW OF THE WIDE RANGE OF DISCRETION GIVEN CONTRACTING OFFICERS IN SUCH MATTERS, GAO CANNOT CONCLUDE THE CONTRACTING OFFICER ACTED IMPROPERLY OR ILLEGALLY IN AWARDING THE CONTRACT TO KLEEN-RITE PRIOR TO RECEIPT OF THE SIZE APPEAL DETERMINATION. B-162015, AUGUST 17, 1967.

TO MILLAR, FALLIN & LALLY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF OLD ATLANTIC SERVICES, INC. (ATLANTIC), AGAINST THE AWARD OF A CONTRACT TO KLEEN RITE JANITORIAL SERVICES, INC. (KLEEN-RITE), UNDER INVITATION FOR BIDS (IFB) NO. DAAG14-72-B-0033, ISSUED ON MAY 12, 1972, BY THE ATLANTA ARMY DEPOT, FOREST PARK, GEORGIA.

THE INSTANT IFB WAS ISSUED AS A 100 PERCENT SMALL BUSINESS SET-ASIDE FOR CUSTODIAL SERVICES TO BE PERFORMED FOR FISCAL YEAR 1973 IN VARIOUS BUILDINGS LOCATED AT THE ATLANTA ARMY DEPOT.

OF THE NINE BIDS RECEIVED AND OPENED ON JUNE 6, 1972, ATLANTIC SUBMITTED THE LOWEST BID AND THE BID OF KLEEN-RITE WAS SECOND LOW. THE FOLLOWING DAY A PREAWARD SURVEY WAS REQUESTED ON BOTH FIRMS FOR USE IN DETERMINING THEIR RESPONSIBILITY. BY LETTER DATED JUNE 7, 1972, KLEEN RITE PROTESTED TO THE PROCURING ACTIVITY AND OUR OFFICE THE SIZE STATUS AND RESPONSIBILITY OF ATLANTIC. WE ADVISED KLEEN-RITE'S ATTORNEYS ON JUNE 20, 1972, THAT INASMUCH AS OUR OFFICE DOES NOT RENDER DECISIONS CONCERNING THE SMALL BUSINESS SIZE STATUS OF FIRMS IN THE FIRST INSTANCE, AND SINCE THE QUESTION OF ATLANTIC'S RESPONSIBILITY WOULD NOT BE RELEVANT UNTIL THE SIZE DETERMINATION WAS MADE BY THE SMALL BUSINESS ADMINISTRATION (SBA), WE WOULD TAKE NO FURTHER ACTION AT THAT JUNCTURE ON THEIR PROTEST.

THE RECORD DISCLOSES THAT THE CONTRACTING OFFICER SUBMITTED TO SBA ON JUNE 12, 1972, THE QUESTION OF ATLANTIC'S SIZE STATUS. ON JUNE 16, 1972, THE DISTRICT DIRECTOR OF SBA (JACKSONVILLE) ADVISED THE CONTRACTING OFFICER THAT ATLANTIC WAS NOT A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THIS PROCUREMENT. BY TELEGRAM DATED JUNE 20, 1972, YOU APPEALED THE AFORESAID SIZE DETERMINATION TO THE SBA'S SIZE APPEAL BOARD. THE FOLLOWING DAY A PREAWARD SURVEY REPORT ON KLEEN-RITE WAS RECEIVED, RECOMMENDING COMPLETE AWARD TO THAT FIRM. SUBSEQUENTLY, ON JUNE 23, 1972, A NEGATIVE PREAWARD SURVEY REPORT WAS RECEIVED ON ATLANTIC, A SIGNIFICANT PORTION OF WHICH RELATED TO ATLANTIC'S POOR FINANCIAL CONDITION, WHICH PRECLUDED AN AFFIRMATIVE RECOMMENDATION OF AN AWARD TO ATLANTIC.

ACCORDINGLY, WITH CONTRACT PERFORMANCE TO COMMENCE JULY 1, 1972, THE CONTRACTING OFFICER MADE A DETERMINATION OF URGENCY ON JUNE 29, 1972, PURSUANT TO PARAGRAPH 1-703(B)(3)(IV) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND AWARDED THE CONTRACT TO KLEEN-RITE ON JUNE 30, 1972. IT WAS NOT UNTIL AUGUST 2, 1972, THAT THE CONTRACTING OFFICER WAS ADVISED THAT THE SBA SIZE APPEAL BOARD HAD DETERMINED, ON JULY 28, 1972, ATLANTIC TO BE A SMALL BUSINESS FIRM. ON THE SAME DAY (AUGUST 2) YOU PROTESTED TO THE AGENCY AND OUR OFFICE THE PROPRIETY OF THE AWARD TO KLEEN -RITE.

THE PRINCIPAL BASIS OF YOUR PROTEST IS THAT THE ONLY URGENCY WHICH EXISTED HERE WAS CAUSED BY THE GOVERNMENT'S MISTAKE IN NEGLECTING TO INCLUDE IN THE IFB A STIPULATION FOR DELAYED AWARD AS SUGGESTED BY PARAGRAPH 1-305.3(B) OF ASPR.

WHILE ASPR 1-703(B)(3)(IV) PROVIDES FOR THE SUSPENSION OF PROCUREMENT ACTION WHERE AN APPEAL IS BEFORE THE SIZE APPEALS BOARD, THAT PARAGRAPH ALSO STATES:

"*** HOWEVER, THIS SUSPENSION SHALL NOT APPLY TO ANY URGENT PROCUREMENT ACTION WHICH THE CONTRACTING OFFICER DETERMINES IN WRITING MUST BE AWARDED WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST."

IN ACCORDANCE WITH THE ABOVE PROVISION, THE CONTRACTING OFFICER DETERMINED IN WRITING THAT THE CONTRACT HAD TO BE AWARDED WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST. ONE OF THE BASES SET OUT FOR THE DETERMINATION OF URGENCY WAS THAT THE SOLICITATION PRESCRIBED A SPECIFIC CONTRACT PERIOD (JULY 1, 1972 - JUNE 30, 1973) AND ANY AWARD WOULD HAVE TO COVER THAT COMPLETE PERIOD. IN OUR VIEW, SUCH REASONING DOES NOT TAKE INTO CONSIDERATION PARAGRAPH 10(C) OF THE IFB'S SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, WHEREIN THE GOVERNMENT RESERVED THE RIGHT TO MAKE THE AWARD FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED (UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER). THE IFB REQUESTED PRICES ON A MONTHLY UNIT BASIS FOR A QUANTITY OF 12 UNITS. HOWEVER, IT IS REPORTED THAT OTHER CONSIDERATIONS ENTERED INTO THE DETERMINATION OF URGENCY, INCLUDING THE FACT THAT AN EXTENSION OF THE PRIOR CONTRACT, THE REQUIREMENTS OF WHICH WERE THEN OBSOLETE, WOULD NOT HAVE PROVIDED ALL ESSENTIAL SERVICES WHICH WERE NEEDED AND PROVIDED FOR UNDER THE NEW CONTRACT.

IT HAS BEEN OUR CONSISTENT POSITION THAT DETERMINATIONS OF URGENCY INVOLVE MATTERS OF JUDGMENT WITHIN THE PROVINCE OF THE CONTRACTING OFFICIALS CONCERNED. IN THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATIONS ARE ARBITRARY, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS. SEE B-158123, FEBRUARY 28, 1966, AND DECISIONS CITED THEREIN. IN VIEW OF THE AGENCY'S POSITION THAT ALL ESSENTIAL SERVICES WOULD NOT HAVE BEEN PROVIDED UNDER AN EXTENSION OF THE EXISTING CONTRACT, WE ARE UNABLE TO CONCLUDE THAT THE DETERMINATION OF URGENCY IN THIS CASE WAS ARBITRARY.

UNDER THESE CIRCUMSTANCES, AND IN VIEW OF THE WIDE RANGE OF DISCRETION GIVEN CONTRACTING OFFICERS IN SUCH MATTERS, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER ACTED IMPROPERLY OR ILLEGALLY IN AWARDING THE CONTRACT TO KLEEN-RITE PRIOR TO RECEIPT OF THE SIZE APPEAL DETERMINATION. B-162015, AUGUST 17, 1967; B-157384, OCTOBER 28, 1965; AND B-168576(1), APRIL 28, 1971. ACCORDINGLY, YOUR PROTEST IS DENIED.