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LOW BIDDER'S PROTEST CONCERNING SMALL BUSINESS SIZE STATUS OF SECOND LOW BIDDER IS PREMATURE AND. IS NOT FOR CONSIDERATION BY GAO SINCE CONCLUSIVE AUTHORITY OVER QUESTION OF BIDDER'S SIZE STATUS IS VESTED BY STATUTE IN SBA. 2. IS IMPROPER. AGENCY'S DETERMINATION THAT NO URGENCY EXISTS WILL NOT BE QUESTIONED. 3. CONTENTION THAT LOW BIDDER IS NOT RESPONSIBLE WILL NOT BE REVIEWED BY THIS OFFICE EXCEPT IN LIMITED CIRCUMSTANCES NOT HERE ALLEGED. (LA CROSSE) HAVE PROTESTED CONCERNING SOLICITATION NO. THERE WAS NO URGENCY. SINCE INFLATED IS THE APPARENT LOW BIDDER AND AT PRESENT IS DETERMINED TO BE RESPONSIBLE. THE SBA IS EMPOWERED TO DETERMINE A BUSINESS CONCERN'S SIZE STATUS FOR PROCUREMENT PURPOSES.

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B-187243, DECEMBER 14, 1976

1. LOW BIDDER'S PROTEST CONCERNING SMALL BUSINESS SIZE STATUS OF SECOND LOW BIDDER IS PREMATURE AND, IN ANY EVENT, IS NOT FOR CONSIDERATION BY GAO SINCE CONCLUSIVE AUTHORITY OVER QUESTION OF BIDDER'S SIZE STATUS IS VESTED BY STATUTE IN SBA. 2. PROTESTER CONTENDS THAT RECONSIDERATION OF AGENCY'S INITIAL URGENCY DETERMINATION-- RESULTING IN FINDING THAT NO URGENCY EXISTS AND SUBSEQUENT TERMINATION OF PROTESTER'S CONTRACT-- IS IMPROPER. ABSENT PRIMA FACIE SHOWING OF FRAUD OR BAD FAITH, NOT HERE ALLEGED, AGENCY'S DETERMINATION THAT NO URGENCY EXISTS WILL NOT BE QUESTIONED. 3. CONTENTION THAT LOW BIDDER IS NOT RESPONSIBLE WILL NOT BE REVIEWED BY THIS OFFICE EXCEPT IN LIMITED CIRCUMSTANCES NOT HERE ALLEGED.

INFLATED PRODUCTS CO., INC.; LA CROSS GARMENT MANUFACTURING COMPANY:

INFLATED PRODUCTS CO., INC. (INFLATED), AND LA CROSSE GARMENT MANUFACTURING CO. (LA CROSSE) HAVE PROTESTED CONCERNING SOLICITATION NO. DSA100-76-B-1307, A SMALL BUSINESS SET-ASIDE, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA.

IT APPEARS THAT ON SEPTEMBER 13, 1976, THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IN BOSTON MADE A NEGATIVE DETERMINATION CONCERNING THE FINANCIAL CAPACITY OF INFLATED, THE APPARENT LOW BIDDER. ON SEPTEMBER 15, 1976, DPSC MADE A DETERMINATION OF URGENCY AND AWARDED A CONTRACT TO LA CROSSE, THE SECOND LOW BIDDER. ON SEPTEMBER 17, 1976, DPSC NOTIFIED LA CROSSE THAT IT INTENDED TO TERMINATE THE CONTRACT BECAUSE, UPON RECONSIDERATION, THERE WAS NO URGENCY, THAT DAY DCASR MADE AN AFFIRMATIVE DETERMINATION CONCERNING THE FINANCIAL RESPONSIBILITY OF INFLATED. LA CROSSE STATES THAT ABOUT 10 DAYS LATER, INFLATED FILED A CHAPTER 11 BANKRUPTCY PETITION. NO AWARD HAS BEEN MADE TO DATE.

INFLATED CONTENDS THAT LA CROSSE DOES NOT QUALIFY AS A SMALL BUSINESS BECAUSE ITS NUMEROUS AFFILIATES MAKE IT A LARGE BUSINESS. SINCE INFLATED IS THE APPARENT LOW BIDDER AND AT PRESENT IS DETERMINED TO BE RESPONSIBLE, A PROTEST AGAINST LA CROSSE'S SIZE STATUS SEEMS PREMATURE; HOWEVER, PURSUANT TO 15 U.S.C. 637(B)(6) (1970), THE SBA IS EMPOWERED TO DETERMINE A BUSINESS CONCERN'S SIZE STATUS FOR PROCUREMENT PURPOSES. SINCE CONCLUSIVE AUTHORITY OVER A BIDDER'S SIZE STATUS IS VESTED IN SBA, OUR OFFICE WILL NOT CONSIDER INFLATED'S PROTEST BASED ON LA CROSSE'S SIZE STATUS. SEE LA CROSSE GARMENT MANUFACTURING COMPANY, B-187243, SEPTEMBER 2, 1976, 76-2 CPD 216.

LA CROSSE CONTENDS THAT (1) DPSC PROPERLY DETERMINED THAT URGENCY EXISTED AND PROPERLY AWARDED THE CONTRACT ON THAT BASIS, AND (2) DPSC'S RECONSIDERATION OF ITS INITIAL URGENCY DETERMINATION-- RESULTING IN A FINDING THAT NO URGENCY EXISTED AND THE SUBSEQUENT TERMINATION OF THE CONTRACT-- WAS IMPROPER. ABSENT A PRIMA FACIE SHOWING OF FRAUD OR BAD FAITH, NOT HERE ALLEGED, AN AGENCY'S DETERMINATION THAT NO URGENCY EXISTS WILL NOT BE QUESTIONED.

LA CROSSE FURTHER CONTENDS THAT AFTER TERMINATION OF ITS CONTRACT, DPSC AND DCASR ACTED IMPROPERLY REGARDING INFLATED'S FINANCIAL RESPONSIBILITY AND SUCH ACTION WAS TAKEN WITHOUT ADEQUATE EVIDENCE OF INFLATED'S FINANCIAL CAPACITY. THIS OFFICE NO LONGER REVIEWS BID PROTESTS AGAINST AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, EXCEPT FOR ACTIONS BY PROCUREMENT OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD OR WHERE THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. SEE LA CROSSE GARMENT MANUFACTURI4G COMPANY, SUPRA. SINCE LA CROSSE HAS NOT ALLEGED FRAUD OR NONAPPLICATION OF DEFINITIVE RESPONSIBILITY CRITERIA, ITS SECOND CONTENTION WILL NOT BE CONSIDERED.

ACCORDINGLY, INFLATED'S PROTEST WILL NOT BE CONSIDERED AND LA CROSSE'S PROTEST IS DENIED.

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