Upon receipt of this advice the Cleveland Small Business Regional Director investigated the status of the Johnson Corporation and determined that Johnson was not a small business for the purpose of Government procurement under the subject IFB. Johnson Corporation appealed from this determination and on May 31, 1967, the Small Business Size Appeals Board upheld the Regional Director's determination. The contracting officer was furnished the preaward survey report on May 1, 1967, containing the advice that the Johnson Corporation due to a merger with another company might no longer be a small business concern. In your letter of June 9, 1967, you state that Armed Services Procurement Regulation (ASPR) 1-703 (b) (1) provides that any bidder in connection with a contract involving a small business set-aside may question the small business status of any bidder on the same procurement by protesting to the contracting officer prior to the close of business on the fifth working day, exclusive of Saturday, Sunday, and legal holidays, after the bid opening date. You point out, however, that ASPR 1-703 (b) (1) (ii) provides that an untimely protest received by a contracting officer shall not be considered in connection with the instant procurement and shall be forwarded to the Small Business Administration for consideration in any future procurement. You also state that ASPR 1-703 (b) (2) provides that a contracting officer may at any time prior to award question the small business status of the apparently successful bidder. Therefore, you contend that since the contracting officer forwarded the untimely protest to SBA under the provisions of ASPR 1-703 (b) (1) (ii) rather than the provisions of ASPR 1-703 (b) (2), the SBA had no authority to determine that the Johnson Corporation was ineligible for award of a contract under the subject invitation because it was a large business concern. In other words, you contend that the SBA determination can only affect future procurements. The general rule with regard to the particular point in time at which a bidder's status as to size is held to be determinative is the time of award and we perceive no cogent reasons for departing from the general rule in the instant case. At the time the Johnson Corporation submitted its bid it could in good faith certify itself as a small business concern. However, on March 31, 1967, after submitting its bid and prior to bid opening the Johnson Corporation by affirmative action acquired the W. H. Olsen Mfg. Company resulting in its becoming a large business concern. In such circumstances, we think that Johnson, as a prudent bidder, should have notified the contracting officer of such change in its status. Had this been done the contracting officer could have exercised his judgment as to whether in the light of such information he should accept Johnson's self certification that it was a small business concern. Furthermore, while it may be that the contracting officer, at the time of his April 21 request for a determination of the small business status of Johnson, intended that the SBA determine Johnson's small business status for future procurements only we think that upon receipt of the advice contained in the preaward survey the contracting officer in the exercise of good judgment had the duty to question the status of Johnson for the instant procurement inasmuch as no award had been made. Since the small business status of Johnson was already being considered by SBA we do not believe that it was necessary for the contracting officer to have made another request citing a different provision of the ASPR in order to follow literally a procedural requirement of the regulation. Accordingly, irrespective of the provisions of the regulation which were cited in requesting SBA to make a determination of the small business status of Johnson, since it has now been determined that Johnson is a large business concern an award to it would be contrary to the purposes of the Small Business Act, 15 U.S.C. 631 note. In that connection, the rationale in our decision of March 19, 1962, B-148023, appears to be for application. In that case a small business restricted invitation was issued and bids were opened on October 13, 1961. The low bidder's eligibility as a small business firm was dependent upon the additional 25 percent factor in employment number which was available to firms located in labor surplus areas. On the bid opening date the low bidder was in fact a small business firm. However, on October 31, 1961, Springfield, Ohio, where the low bidder was located, was removed from the listing of persistent and substantial labor surplus areas. The low bidder thus became a large business concern for purposes of the procurement. It was held that since the date of award governed the final determination of the eligibility of a bidder as a small business concern the low bidder was no longer eligible for award under the invitation and the award, which was subsequently made to the next lowest bidder at a substantially higher price, was upheld. Accordingly, since the decision of SBA regarding the size status of a company, by statute, is "conclusive," 44 Comp. Gen. 271, we have no alternative but to deny your protest and therefore the bid of Johnson may not be considered for award. INDEX DIGEST July 1, 1966-June 30, 1967 Page ABSENCES Leaves of absence. (See Leaves of Absence) ACCOUNTABLE OFFICERS Accounts Payments subject to review Legal propriety of payments made by public officers in transaction Question of law Question of propriety of accountable officer certifying voucher for Certifying officers. (See Certifying Officers) ADMINISTRATIVE DETERMINATIONS Bidders' qualifications. (See Bidders, qualifications, administrative determinations) Conclusiveness Contract disputes Determination under contract disputes clause by hearing examiner, 441 441 441 901 ADMINISTRATIVE DETERMINATIONS-Continued Conclusiveness-Continued Contract disputes-Continued Question of propriety of accountable officer certifying voucher for Although GAO is not "court of competent jurisdiction" within Before Wunderlich decision, 342 U.S. 98 (1951), limiting review of Legislative history of Wunderlich Act, 41 U.S.C. 321-322, not only Standards of review of administrative decisions on contract disputes Contract disputes clause which provides that decisions of contracting The fact that GAO is not equipped to conduct administrative hearings Page 441 441 441 441 441 441 ADMINISTRATIVE DETERMINATIONS-Continued Conclusiveness-Continued Contract disputes-Continued review administrative determination of fact since under rule in Bianchi Hearing examiner's determination under contract disputes clause pro- Contracts Payment claims Contractors who feel that they are entitled to additional amounts Under invitation requiring submission of preproduction samples and Veterans matters Insurance Administrator of Veterans Admin. having established Sept. 29, 1965, Definiteness Hearing examiner findings A hearing examiner's finding under disputes clause proceeding that Page 441 441 441 123 411 441 277 066 68 50 |