TITLE:  Planned Systems International, Inc., B-292319.7, February 24, 2004
BNUMBER:  B-292319.7
DATE:  February 24, 2004
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Planned Systems International, Inc., B-292319.7, February 24, 2004

   Decision
    
    
Matter of:   Planned Systems International, Inc.
    
File:            B-292319.7
    
Date:              February 24, 2004
    
Jonathan D. Shaffer, Esq., Smith Pachter McWhorter & Allen, for the
protester.
Robert K. Tompkins, Esq., Patton Boggs, for Advanced Management
Technology, Inc., an intervenor.
David T. Truong, Esq., National Science Foundation, and Kenneth Dodds,
Esq., Small Business Administration, for the agencies.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Award of delivery order under small business set-aside procurement was
legally unobjectionable--despite Small Business Administration*s (SBA)
determination in response to timely-filed size protest that awardee was
not a small business concern--where agency delayed the award as required
by the Federal Acquisition Regulation, and award was made before SBA*s
determination was finally issued.
DECISION
    
Planned Systems International, Inc. (PSI) protests the award of a delivery
order to Advanced Management Technology, Inc. (AMTI) under request for
quotations (RFQ) No. DACS-03-0032, issued by the National Science
Foundation (NSF) for information technology (IT) services. SI argues that
AMTI is ineligible for award because the Small Business Administration
(SBA) determined that AMTI was other than a small business for purposes of
this procurement.
    

   We deny the protest.
    
NSF conducted the procurement using the General Services Administration
(GSA) Federal Supply Schedule (FSS), and limited the competition to small
businesses with a contract under Schedule 70, Special Item Number 132-51. 
Following the submission and evaluation of quotations, on July 25, 2003,
NSF selected AMTI for award and notified PSI of the award decision.  On
July 30, PSI filed a size status protest with NSF, arguing that AMTI was
not a small business, and therefore was ineligible for award.  PSI also
filed protests against the award decision with our Office on August 1,
August 28, and September 15 (B-292319.3, B‑292319.4,
B‑292319.5).  Actual award to AMTI was stayed pending our decision
on the matter.  On August 20, NSF denied PSI*s size status protest based
on AMTI*s self-certification as a small disadvantaged business concern. 
However, since SBA has conclusive authority to determine small business
size status, on August 26 NSF forwarded the size status protest to SBA. 
    
On September 12, SBA sent NSF an e-mail requesting additional
information.  In that e-mail, SBA also indicated that it would require at
least 10 additional days to decide the protest.  On October 30, we issued
a decision denying PSI*s protests (Planned Sys. Int*l, Inc., B-292319.3 et
al., Oct. 30, 2003, 2003 CPD P: 198).  Thus, as of that date, the stay of
award was lifted, and on October 31 NSF issued a delivery order to AMTI. 
Thereafter, on November 10, NSF received a copy of a November 6 SBA
determination that AMTI was other than a small business.  Agency Report
(AR) at 5.  NSF has declined to cancel AMTI*s delivery order. 
    
Noting that SBA has exclusive authority to determine size status, PSI
asserts that, since it timely filed its size protest and SBA has
determined that AMTI is not a small business for this procurement, the
agency is required to cancel AMTI*s delivery order and make award to PSI. 
    
We find that the award to AMTI was legally unobjectionable.  The Federal
Acquisition Regulation (FAR), the principal regulation governing federal
procurements, provides as follows regarding situations where a protest
challenging the proposed awardee*s size status has been filed:
    
After receiving a protest involving an offeror being considered for award,
the contracting officer shall not award the contract until (i) the SBA has
made a size determination or (ii) 10 business days have expired since
SBA*s receipt of a protest, whichever occurs first . . . .
FAR S: 19.302(h)(1).  While SBA*s regulations provide that a size
determination based on a timely filed size status protest applies to the
procurement in question, 13 C.F.R. S: 121.1004 (2003), those regulations
also recognize the 10-day period provided for in the FAR, stating that
*SBA will make a formal size determination within 10 working days, if
possible.*  13 C.F.R. S: 121.1009.
    
PSI*s timely protest of AMTI*s size status was received in the appropriate
office at SBA on August 28.  Thus, according to its own regulations, if
possible, SBA was to render a decision on the size protest within 10
business days thereafter, that is, by September 12; SBA*s subsequent
request to NSF that this time be extended 10 days moved the due date for
SBA*s decision to September 24.  SBA did not issue the size determination
by the September 24 due date.  Indeed, SBA did not issue its decision
until November 6.  This was inconsistent with SBA*s regulations; there is
no indication--and SBA does not assert--that it was not possible to issue
the determination by September 24.  NSF did not make award until more than
1 month after the size determination due date, on October 31, the day
after our decision on PSI*s protest was issued and the stay of award was
lifted.  Under these circumstances, since NSF delayed the award as
required by the FAR, and SBA had not issued the size status determination
as of the award date, the award to AMTI was proper and the delivery order
need not be canceled.  See Systems Research and Applications Corp.;
Infotec Dev., Inc., B‑270708 et al., Apr. 15, 1996, 96‑1 CPD
P: 186 at 6; Priscidon Enters., Inc., B-230035, Mar. 18, 1988, 88-1 CPD P:
290 at 2.
    
PSI and SBA note that, because the procurement was stayed pending GAO*s
decision on PSI*s protests, and the statutory deadline for issuance of the
decision was November 10, SBA believed that it had until November 10 to
decide the size status protest, and thus reasonably delayed issuing its
determination with that date in mind.  This argument does not establish
that the award was improper.  First, the statutory deadline SBA and PSI
cite was the last day a decision could be issued; there was no basis to
assume that a decision would not be issued prior to that date.  (We note
that SBA never contacted our Office for information as to the status of
the protest.)  Moreover, the propriety of the award has nothing to do with
PSI*s protest to our Office and the attendant stay.  Rather, the FAR
provisions discussed above (which are reflected in SBA*s regulations)
speak directly to the facts of this case, and the award here was proper
under those provisions. 
    
The protester and SBA suggest that NSF*s delay in referring the size
protest to SBA until approximately 1 month after it was filed with NSF was
the cause of the delay in issuance of the size determination, and that,
but for NSF*s delay, the determination would have been issued 1 month
earlier.  However, it is not apparent, and SBA does not explain, how NSF*s
initial delay in referring the protest reasonably could have affected the
time SBA took after the referral to issue its determination.  SBA*s
assertion is especially weak given that, after SBA received the size
protest, it allowed 10 business days to pass before it even made its
request to NSF for additional information and the 10‑day extension. 
Rather, since it appears that SBA saw no urgency to decide the matter in
advance of the deadline for our Office*s decision on PSI*s protests, there
is every reason to believe that SBA would have delayed its decision even
had the size protest been referred at an earlier date.
    
SBA asserts that it informed the contracting officer of SBA*s
unfamiliarity with the issue underlying AMTI*s small business size status,
advised her that an additional extension of time could be needed to issue
a decision, and asked her to keep SBA informed of any decision by our
Office.  The contracting officer denies that SBA informed her that an
additional extension might be required, or requested that she notify SBA
of any GAO decision.  However, we need not resolve this factual dispute. 
First, whether or not SBA informed the NSF contracting officer that a
further extension might be needed, SBA does not claim (and there is no
indication) that it did request an additional extension, or that NSF
agreed to one.  In any case, as of the October 30 issuance of our
decision, SBA had not reached a decision on AMTI*s size status.  Thus,
even if NSF had informed SBA on October 30 that our decision had been
issued, there is no reason to believe that a size determination would have
been issued before NSF made award on October 31.       
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel