BNUMBER:  B-281237 
DATE:  January 14, 1999
TITLE: Callejas & Ross, Inc., B-281237, January 14, 1999
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Matter of:Callejas & Ross, Inc.

File:     B-281237

Date:January 14, 1999

Marshall J. Doke, Jr., Esq., Gardere & Wynne, for the protester.
John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business 
Administration, and Gregory W. Vanagel, Esq., Department of the Army 
Corps of Engineers, for the agencies.
Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Small Business Administration (SBA) reasonably determined that 
protester was ineligible for award of 8(a) construction contract where 
protester failed to provide sufficient information during SBA's 
investigation to show that it established and maintained a qualifying 
office (other than office space provided by the government) staffed 
with at least one full-time employee within the geographic area 
specified in the solicitation.

DECISION

Callejas & Ross, Inc. protests the determination by the Small Business 
Administration (SBA) that the firm is ineligible for an award under 
invitation for bids (IFB) No. DACA21-98-B-0036, issued by the Savannah 
District Corps of Engineers (Corps) for a construction project on Pope 
Air Force Base, North Carolina, because Callejas does not satisfy the 
geographic restriction contained in  the solicitation.  Callejas 
asserts that SBA's determination is unreasonable because the protester 
does maintain a qualifying office within the geographical area called 
for under the IFB.

We deny the protest.

By letter dated March 11, 1998, the Corps offered the construction 
requirement for extensive renovations to a family services center on 
the Air Force base to SBA for award through the 8(a) Business 
Development program.  Because the value of the requirement exceeded 
the applicable competitive threshold amount,[1] the Corps offered the 
requirement to SBA as a competitive 8(a) contract opportunity.  Under 
this program, SBA executes contracts with other government agencies to 
provide goods or services, and subcontracts the performance of the 
contracts to small business concerns that are owned and controlled by 
individuals determined by SBA to be socially and economically 
disadvantaged.  Competition for the contract is conducted by the 
procuring agency, while SBA makes the 8(a) eligibility determinations.  
13 C.F.R.  sec.  124.311(e).  By statute, 8(a) construction contracts must 
be awarded "to the maximum practicable extent" within "the county or 
State where the work is to be performed."  15 U.S.C.  sec.  637(a)(11) 
(1994).  Under 13 C.F.R.  sec.  124.311(g)(3), SBA determines, based on its 
knowledge of the 8(a) portfolio, whether the competition should be 
limited to only those firms within the geographical boundaries of one 
or more SBA district offices, an entire SBA regional office, or 
adjacent SBA regional offices.  Only those concerns located within the 
appropriate geographical boundaries are eligible to compete.  

SBA accepted the requirement as a competitive small disadvantaged 
business set-aside under section 8(a) of the Small Business Act, 15 
U.S.C.  sec.  637(a), and issued the IFB with the following provision on 
its initial page:

     THIS CONSTRUCTION REQUIREMENT IS SUBJECT TO LOCAL BUY 
     RESTRICTIONS.  ONLY 8(a) COMPANIES MEETING LOCAL BUY CRITERIA FOR 
     CONSTRUCTION PROJECTS IN NORTH CAROLINA WILL BE ELIGIBLE TO 
     COMPETE.

The Corps received six bids by the time set on July 30 for bid 
opening, of which Callejas's bid was the lowest.  Callejas's principal 
place of business is Wichita Falls, Texas.  By letter dated August 18, 
SBA's Charlotte North Carolina District Office requested further 
information from Callejas concerning its local buy eligibility for 
North Carolina, stating:

     Please forward copies of documents that will demonstrate North 
     Carolina local buy eligibility for Callejas & Ross, Inc.  
     Examples of documentation include the pay records of the full 
     time employee(s), lease agreements for North Carolina business 
     location(s), copies of letterhead identifying North Carolina 
     business location(s) and records of telecommunications agreements 
     in the name of Callejas & Ross, Inc. for its North Carolina 
     site(s).

In response, Callejas submitted the following:

     copies of payroll forms referring to "the payment of the persons 
     employed by Callejas and Ross, Inc. on the Protective Coating 
     Maintenance, Pope AFB, NC" project for pay periods between 
     December 31, 1997 and August 11, 1998; 

     a sheet of letterhead paper listing an address and phone number 
     for Callejas in Hope Mills, North Carolina;

     an unemployment tax rate assessment from the Employment Security 
     Commission of North Carolina (listing Callejas at its Wichita 
     Falls, Texas address);

     an insurance binder listing Callejas, at its Texas address, as 
     the insured for a dwelling in Hope Mills, North Carolina;

     a mortgage application form on which Callejas, at its Texas 
     address, applies for a mortgage loan for property at the Hope 
     Mills address; and 

     several monthly bills for a cellular phone, listing Callejas at 
     its Wichita Falls, Texas address.

The business opportunity specialist (BOS) in the SBA Charlotte, North 
Carolina District Office determined that Callejas was ineligible for 
the award because it could not demonstrate that it maintained a branch 
office in North Carolina (other than government-furnished office 
space) prior to March 16, the date on which the contract opportunity 
was accepted from the Corps.  The BOS noted that the firm had not 
provided sufficient documentation to show that Callejas was the tenant 
of the alleged Hope Mills branch office, such as utility bills or 
non-mobile telephone service receipts.  Memorandum of Sept. 8, 1998 
from BOS to Match/Contract File.

On September 11, SBA informed the Corps that Callejas was ineligible 
for the 8(a) contract opportunity because it failed to meet the local 
buy restrictions.  Accordingly, the Corps awarded the contract to the 
next low bidder, and this protest followed.

Callejas alleges that SBA's determination of ineligibility was 
improper because it considered the question of whether Callejas had a 
branch office as of the date the contract opportunity was accepted 
into the 8(a) program (March 16, 1998), pursuant to SBA Procedural 
Notice 8000-483, instead of making its determination as of the date of 
Callejas's initial offer including price (July 30, 1998), as required 
by 13 C.F.R.  sec.  124.311(e)(4)(iii).  SBA subsequently acknowledged in 
its report to our Office that the procedural notice did not satisfy 
the applicable C.F.R. standard, but states that it subsequently used 
the correct date to determine eligibility as required under the 
C.F.R., and determined that Callejas is not eligible for award under 
the local buy restriction.

Section 8(a) of the Small Business Act, 15 U.S.C.  sec.  637(a), authorizes 
SBA to enter into contracts with government agencies and to arrange 
for performance through subcontracts with socially and economically 
disadvantaged small business concerns.  FAR  sec.  19.805 and 13 C.F.R.  sec.  
124.311 provide for and govern competitively awarded contracts set 
aside for 8(a) qualified concerns.  Because of the broad discretion 
afforded to SBA and the contracting agencies under the applicable 
statute and regulations, our review of actions under the 8(a) program 
is generally limited to determining whether government officials have 
violated applicable regulations or engaged in bad faith.  See Border 
Maintenance Serv., Inc. B-250489, Feb. 3, 1993, 93-1 CPD  para.  97 at 5, 
recon. denied, B-250489.4, June 21, 1993, 93-1 CPD  para.  473.  Here, we 
find unobjectionable SBA's determination that Callejas did not 
maintain a branch office which satisfies the IFB's geographic 
restriction, thus rendering the firm ineligible for award.

Implementing 15 U.S.C.  sec.  637(a)(11), the applicable SBA regulation, 13 
C.F.R.  sec.  124.311(g)(3), provides that only 8(a) program participants 
"located within the appropriate geographical boundaries" are eligible 
to compete for 8(a) construction contracts.  The regulations do not 
define this phrase or otherwise describe the circumstances under which 
SBA considers a participant "located within the appropriate 
geographical boundaries."  However, the preamble to the regulations 
explains that "SBA believes that the Program Participant may be 
considered as being located within a geographical boundary if it 
regularly maintains an office which employs at least one full-time 
individual within that geographical boundary."  60 Fed. Reg. 29,969, 
29,971 (June 7, 1995).[2]  On August 7, 1997, SBA issued an internal 
agency procedural notice stating that for purposes of 8(a) competitive 
award of construction contracts, a firm with a "branch office" located 
within the geographic boundaries of the relevant competitive area 
where the work is to be performed is eligible for award of the 
contract.  That notice further stated that a "branch office" means an 
office with at least one full-time employee that:

     (1) is other than a firm's principal place of business for 
     determining 8(a) eligibility; (2) is established and maintained 
     by the firm for conduct of one or more business activity(ies) as 
     an on-going business concern (space provided by the government 
     shall not be used to market other procurements and shall not be 
     considered an office); 
     (3) was established and operational on or before the date the 
instant requirement was accepted into the 8(a) program; and (4) is 
staffed by 
     one or more full time employee(s) on the date that the instant 
requirement 
     was accepted into the 8(a) program.

Regarding the date that should be used for determining an offeror's 
eligibility, SBA concedes in its report to our Office that the 
conflict between this internal procedural notice and the C.F.R. must 
be resolved in favor of the C.F.R.  While SBA now acknowledges that it 
initially applied an inappropriate deadline for eligibility, it 
explains that it subsequently assessed the 8(a) local buy eligibility 
of Callejas as of the date of Callejas's offer, and reached the same 
conclusion when applying the correct standard.

Based on the documentation that Callejas submitted to SBA, we have no 
basis to object to SBA's determination that Callejas did not have a 
branch office on July 30, as required in order to be eligible for 
award.  As SBA points out in its protest report, Callejas did not 
submit a lease agreement or telecommunication agreement evidencing a 
North Carolina office, as specifically requested.  While the 
unemployment tax forms and certified payroll records show that 
Callejas maintains paid employees in the state of North Carolina, it 
does not show that these employees work in a branch office, as opposed 
to working in the office space provided by the government on Pope Air 
Force Base; these records, as well as the cellular phone bills 
submitted, all list Callejas's Texas address.  The only documentation 
showing a North Carolina address consisted of letterhead stationery 
with a Hope Mills address; an insurance contract for a dwelling in 
Hope Mills; and a real estate loan disclosure/mortgage application 
form for a dwelling in Hope Mills.  However, the stationery and the 
other two forms list two different addresses in Hope Mills.  Moreover, 
the address on the stationery, a property purchased by Callejas in May 
1998, is also the payroll address of record of one of Callejas's 
supervisory employees.  While that employee submitted a statement to 
the SBA office in Fort Worth, Texas (by letter of August 31, 1998) 
asserting that a "[r]egional office was established at [a third 
address, in Raeford, North Carolina] which was within my residence" 
and stating that "Mr. Callejas raised my salary to compensate the 
office in my home," no written agreement (or accounting, tax, or 
insurance records, or any other documentation) was submitted to 
support this, nor does this letter refer in any way to the Hope Mills 
addresses that appear on the other documents, or explain what the 
current situation is.  The protester offers no explanation regarding 
the three separate North Carolina addresses that appear in the 
submitted documents, either in the submissions or in its protest 
filings.  The agency report states that as of August 17, 1998, no 
telephone listing for Callejas could be obtained from directory 
assistance for the Fayetteville, North Carolina area.  None of the 
other miscellaneous papers later submitted by Callejas--post office 
box receipts, federal express mail receipts, credit card receipts for 
Internet service and travel expenses, and billing paperwork--show a 
North Carolina business address.

Accordingly, we agree with SBA that, notwithstanding its initially 
erroneous use of the March 16 date in making its ineligibility 
determination, SBA properly determined on the basis of the submitted 
documentation that Callejas failed to show that it maintained a branch 
office in North Carolina as of July 30, 1998, the date on which 
Callejas submitted its offer.

In its comments, Callejas does not provide any explanation for the 
conflicting addresses or gaps in the record, discussed above.  Rather, 
Callejas inaccurately characterizes the position as finding Callejas 
"ineligible because [Callejas] had purchased its Hope Mills office 
after the date that the SBA accepted the requirement into the 8(a) 
program, and [because Callejas] did not have a listing for a 
stationary commercial telephone in [North Carolina]," ignoring the 
numerous other factors that SBA took into account in its eligibility 
analysis.[3]  Protester's Surrebuttal of December 3, 1998 at 1.  
Callejas then contends that "if [the SBA BOS] had applied the correct 
regulatory criteria, he would have found that [Callejas] owned a 
branch office in North Carolina as of the date that [Callejas] 
submitted its bid," Id. at 2, in an assertion that is wholly 
unsupported by the record and contradicts the SBA conclusions, 
discussed above.  Regarding SBA's determination that cellular phone 
records showing a Texas address do not evidence a North Carolina 
branch office, Callejas asserts that "[i]n the absence [of] any other 
basis for the SBA's determination, the lack of a stationary commercial 
telephone line is completely inadequate to support a finding that 
[Callejas] did not have a North Carolina branch office." Id. at 2.  
Again, Callejas ignores the fact that SBA considered the various other 
factors in its eligibility determination, and Callejas mistakenly 
presumes that SBA is required to affirmatively prove that the bidder 
does not have a branch office, when in fact it is the bidder claiming 
eligibility based on a branch office that is required to provide 
documentation establishing that office's existence.  Further, we find 
without merit Callejas's essential argument that mobile phone 
records--billed to a Texas office--somehow demonstrate the existence 
of an established North Carolina branch office.  We do not view 
payment of a phone that is not linked to any fixed location as 
providing any evidence of a branch office.  Moreover, in light of the 
fact that Callejas has employees working in government-provided space 
on a North Carolina Air Force Base (which cannot be considered as a 
branch office), even if the phone records demonstrated that the phone 
was operated exclusively by a Callejas employee, it would not 
establish that the phone was used by a branch office.

In sum, we see no basis to question the propriety of SBA's 
determination that Callejas failed to establish that it had a branch 
office in North Carolina.  

The protest is denied.

Comptroller General 
of the United States

1. SBA's regulations require that a contract opportunity offered to 
the 8(a) program be awarded on the basis of a competition restricted 
to eligible participants where there is a reasonable expectation that 
at least two eligible program participants will submit offers and 
award can be made at a fair market price; and the anticipated award 
price exceeds $3 million for non-manufacturing contracts.  13 C.F.R.  sec.  
124.311(a) (1998).  

2. See PI Constr. Co., B-272174, B-272177, Oct. 2, 1996, 96-2 CPD  para.  
128 at 4, recognizing the legal significance of that regulatory 
preamble and SBA's implementation of its regulations pertaining to 
geographic limitations for construction contracts.

3. While Callejas mentions that the agency report "lists several other 
bases [considered in the eligibility determination] that were not part 
of its original determination," Protester's Surrebuttal of December 3 
at 5, Callejas views these bases as irrelevant because they were not 
cited in SBA's initial eligibility determination.  Callejas contends 
that it is improper during a post-award bid protest for the agency to 
substitute completely new bases for its determination, and therefore 
does not address these bases at all.  We find this argument misplaced.  
In these circumstances, where SBA has recognized that the submitted 
documentation must be analyzed in relation to a different date than 
the date upon which its initial analysis was based, its resulting 
analysis is not invalid simply because it is made during the course of 
a protest.  In this case, unlike Intellectual Properties, Inc., 
B-280803, Nov. 19, 1998, 98-2 CPD  para.  115, cited by the protester, SBA's 
analysis did not consist of a hypothetical exercise to show that no 
prejudice resulted from its misevaluation.  Rather, as the cognizant, 
statutorily authorized agency, SBA  reviewed the facts before it 
applying a corrected cut-off date.  Moreover, SBA's role in 
determining eligibility (as opposed to choosing a vendor with which to 
enter a contractual relationship) means that it is not subject to the 
pressures of an adversarial process in the same way that a contracting 
agency might be.   Further, in light of the broad discretion granted 
to SBA under Section 8(a) of the Small Business Act, 15 U.S.C.  sec.  
637(a), we generally limit our review of actions under the 8(a) 
program to determining whether government officials have violated 
applicable regulations or engaged in bad faith.  See Border 
Maintenance Serv., Inc., supra.