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PROCUREMENT - Bid Protests - Agency-level protests - Protest timeliness - GAO review PROCUREMENT - Socio-Economic Policies - Small business set-asides - Size status - Administrative discretion - GAO review DIGEST: Agency is not required to terminate award to firm where. The Small Business Administration finds awardee is not an SDB. CSD alleges that because this solicitation was restricted to SDB concerns. Packaging was determined not to be an SDB by the Small Business Administration (SBA). Award to Packaging was improper. Bids were opened on September 20. Apparently when it was notified of award by the agency. The matter was referred to the SBA. The contracting officer subsequently advised CSD that she would not take corrective action since award had been made and work was being performed.

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B-238422.2, Jul 17, 1990, 90-2 CPD 42

PROCUREMENT - Bid Protests - Agency-level protests - Protest timeliness - GAO review PROCUREMENT - Socio-Economic Policies - Small business set-asides - Size status - Administrative discretion - GAO review DIGEST: Agency is not required to terminate award to firm where, in response to untimely protest of Small Disadvantaged Business (SDB) status of the awardee under an SDB set-aside, the Small Business Administration finds awardee is not an SDB.

Attorneys

Chemical Specialists & Development:

Chemical Specialists & Development (CSD) protests the award of a contract by the Defense Logistics Agency (DLA) to Packaging Service Company, Inc. under invitation for bids (IFB) No. DLA400-90-B-0345, a small disadvantaged business (SDB) set-aside. CSD alleges that because this solicitation was restricted to SDB concerns, and Packaging was determined not to be an SDB by the Small Business Administration (SBA), award to Packaging was improper.

We dismiss the protest.

Bids were opened on September 20, 1989. CSD first filed its protest against Packaging's SDB status on January 25, 1990, apparently when it was notified of award by the agency. The matter was referred to the SBA, and by letter of March 14, the SBA found that Packaging did not qualify as an SDB. The contracting officer subsequently advised CSD that she would not take corrective action since award had been made and work was being performed.

The Department of Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 219.301 (DAC 88-14) provides the procedures for protesting the disadvantaged status of an offeror. The regulation states that to apply to the acquisition in question, an offeror's protest must be filed with and be received by the contracting officer prior to the close of business on the fifth business day after the bid opening date. DFARS Sec. 219.302(2). Here, bids were opened on September 20, 1989, and CSD's initial protest to the contracting officer concerning the SDB status of the awardee was dated January 25, 1990. Since CSD's protest against Packaging's SDB eligibility was not timely filed, we have no basis to object to the agency's refusal to apply the SBA's ruling to the instant procurement.

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