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CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - PRIOR TO RESOLUTION OF SIZE PROTEST DIGEST: AFTER THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE ISSUES ITS DETERMINATION THAT THE PROTESTER IS NOT A SMALL BUSINESS CONCERN. JENSEN CONTENDS THAT IT WAS IMPROPER FOR VA TO MAKE AWARDS UNDER THE SOLICITATIONS WHILE JENSEN'S APPEAL OF A DECISION BY THE SMALL BUSINESS ADMINISTRATION (SBA) THAT IT IS NOT A SMALL BUSINESS CONCERN WAS PENDING. WAS FOUND NOT TO BE A SMALL BUSINESS CONCERN BY THE SBA'S ATLANTA REGIONAL OFFICE. AFTER THE REGIONAL OFFICE'S DECISION WAS ISSUED. BEFORE JENSEN'S APPEAL WAS RESOLVED. ALSO WAS DETERMINED NOT TO BE A SMALL BUSINESS CONCERN. BECAUSE THE SECOND LOW BIDDER WAS FOUND NONRESPONSIVE.

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B-220770, B-220771, OCT 21, 1985, 85-2 CPD 434

CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - PRIOR TO RESOLUTION OF SIZE PROTEST DIGEST: AFTER THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE ISSUES ITS DETERMINATION THAT THE PROTESTER IS NOT A SMALL BUSINESS CONCERN, THE CONTRACTING AGENCY MAY MAKE AWARD TO ANOTHER BIDDER WITHOUT WAITING FOR THE PROTESTER'S APPEAL OF THE SIZE STATUS DETERMINATION TO BE RESOLVED.

JENSEN CORPORATION:

JENSEN CORPORATION PROTESTS THE AWARD OF ANY CONTRACTS UNDER SOLICITATION NOS. M6-9-85 AND M6-14-85 FOR LAUNDRY EQUIPMENT, ISSUED BY THE VETERANS ADMINISTRATION (VA) AS SMALL BUSINESS SET-ASIDES. JENSEN CONTENDS THAT IT WAS IMPROPER FOR VA TO MAKE AWARDS UNDER THE SOLICITATIONS WHILE JENSEN'S APPEAL OF A DECISION BY THE SMALL BUSINESS ADMINISTRATION (SBA) THAT IT IS NOT A SMALL BUSINESS CONCERN WAS PENDING. WE DISMISS THE PROTESTS.

AFTER BID OPENING UNDER SOLICITATION NO. M6-9-85, JENSEN, THE LOW BIDDER, WAS FOUND NOT TO BE A SMALL BUSINESS CONCERN BY THE SBA'S ATLANTA REGIONAL OFFICE, AND SUBSEQUENTLY FILED AN APPEAL OF THAT DECISION TO THE SBA'S OFFICE OF HEARINGS AND APPEALS. ACCORDING TO JENSEN, AFTER THE REGIONAL OFFICE'S DECISION WAS ISSUED, BUT BEFORE JENSEN'S APPEAL WAS RESOLVED, THE VA MADE AWARD TO ANOTHER BIDDER UNDER THE SOLICITATION. WITH REGARD TO SOLICITATION NO. M6-14-85, JENSEN STATES THAT AMERICAN LAUNDRY MACHINERY CO., THE LOW BIDDER, ALSO WAS DETERMINED NOT TO BE A SMALL BUSINESS CONCERN. THE VA THEN MADE AWARD TO ANOTHER BIDDER. ACCORDING TO JENSEN, VA AWARDED THE CONTRACT TO THE FOURTH LOW BIDDER, BECAUSE THE SECOND LOW BIDDER WAS FOUND NONRESPONSIVE, AND JENSEN, THE THIRD LOW BIDDER, HAD BEEN FOUND NOT TO BE A SMALL BUSINESS UNDER SOLICITATION NO. M6-9-85.

JENSEN ARGUES THAT IT WAS IMPROPER FOR VA TO MAKE AWARD UNDER EITHER SOLICITATION WHILE JENSEN'S APPEAL OF THE SBA'S SIZE STATUS DETERMINATION WAS PENDING SINCE, IF THAT APPEAL WERE RESOLVED IN JENSEN'S FAVOR, JENSEN WOULD BE IN LINE FOR AWARD UNDER BOTH CONTRACTS. WE DISAGREE. WHILE THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 19.302(I), PROVIDES FOR AN APPEAL FROM AN SBA SIZE STATUS DETERMINATION BY ANY CONCERN THAT HAS BEEN ADVERSELY AFFECTED, THERE IS NO REQUIREMENT THAT THE CONTRACTING OFFICER WITHHOLD AWARD DURING THE APPEAL PERIOD. SEE H. ANGELO & CO., INC., B-218573, MAY 9, 1985, 85-1 CPD PARA. 519. THE ONLY LIMITATION ON THE CONTRACTING OFFICER'S AUTHORITY TO MAKE AWARD IN THESE CIRCUMSTANCES APPLIES WHEN THE SIZE STATUS PROTEST IS FIRST FILED; SPECIFICALLY, WHEN A SIZE STATUS PROTEST IS FILED, THE CONTRACTING OFFICER MAY NOT MAKE AN AWARD UNTIL THE SBA REGIONAL ADMINISTRATOR HAS ISSUED A DETERMINATION OR UNTIL 10 WORKING DAYS AFTER SBA'S RECEIPT OF THE PROTEST, WHICHEVER OCCURS FIRST. SEE FAR, 48 C.F.R. SEC. 19.302(H)(2). AS A RESULT, IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER TO MAKE AWARD UNDER THE TWO SOLICITATIONS AFTER THE SBA REGIONAL OFFICE'S DECISION WAS ISSUED, BUT BEFORE JENSEN'S APPEAL WAS RESOLVED.

THE PROTESTS ARE DISMISSED.

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