Jensco Marine, Inc., B-278929.7, February 11, 1999

B-278929.7 Feb 11, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Contracting agency's failure to give notice to unsuccessful offerors of an impending small business set-aside award prior to the actual award provides no basis for disturbing the award where the protester was not prejudiced by this procedural deficiency because it was able to file a timely size status protest with the Small Business Administration (SBA). The agency would likely have been precluded from awarding the contract pending the issuance of the OHA ruling. Is for marine vessel maintenance and related services and equipment in connection with this marine enforcement program. Seven proposals were received in response to the RFP by the July 31. Five offerors' proposals were included in the competitive range: those of Jensco. View Decision Matter of: Jensco Marine, Inc. File: B-278929.7 Date: February 11, 1999 DIGEST Attorneys DECISION Jensco Marine, Inc. protests the award of a contract to General Offshore Corporation under request for proposals (RFP) No. CS-97-012, issued as a total small business set-aside by the U.S. Customs Service, Department of the Treasury, for marine vessel maintenance. We deny the protest. BACKGROUND Customs operates a fleet of marine vessels located throughout the United States engaging in drug interdiction and other law enforcement activities. The RFP, issued on February 26, 1997, is for marine vessel maintenance and related services and equipment in connection with this marine enforcement program. The RFP contemplated the award of a cost-plus-fixed-fee contract for a base period, with four option periods, to the offeror whose proposal represented the best value to the government, certain technical factors and cost/price considered. Seven proposals were received in response to the RFP by the July 31, 1997 closing date. Each offeror self-certified its eligibility for award as a small business concern. Based on the initial evaluation, five offerors' proposals were included in the competitive range: those of Jensco, General Offshore, WHECO Corporation, MAR, Inc., and Seaward Services. Following discussions and the receipt of best and final offers, the agency found the proposals to be technically equal. The agency's source selection official determined that General Offshore's proposal represented the best value on the basis of its lower evaluated cost/price. Customs awarded the contract to General Offshore on June 12, 1998, and notified the other unsuccessful offerors of the award 3 days later, on June 15. Jensco, MAR, and Seaward filed timely size protests with the contracting officer on June 17, alleging that General Offshore was ineligible for award because it was not a small business. The following day, the contracting officer referred the size protests to the cognizant regional office of the Small Business Administration (SBA), which has conclusive authority to determine matters of small business size status for federal procurement. See 15 U.S.C. Sec. 637(b)(6) (1994). Concurrently with the size protests, Jensco, MAR, and WHECO filed timely bid protests in our Office against the award of the contract to General Offshore on various grounds involving the agency's evaluation of proposals and resulting source selection decision. Based on the timely filing of the bid protests in our Office, Customs stayed performance of the awarded contract, as required by 31 U.S.C. Sec. 3553(d)(3)(A) (1994). On July 10, the SBA regional office issued a size determination which concluded that General Offshore was a small business as of the date of its self-certification, and was thus eligible for award. Jensco timely appealed the size determination to the SBA's Office of Hearings and Appeals (OHA) on July 23. Two months later, our Office denied the bid protests, including the bid protest filed by Jensco, in Mar, Inc. et al., B-278929.2 et al., Sept. 28, 1998, 98-2 CPD Para. 92. We found that Customs properly made award to General Offshore in accordance with the evaluation scheme set out in the RFP. Id. at 10. On September 29, based on our disposition of the bid protests, Customs authorized General Offshore to commence the transition phase of the contract. On October 23, General Offshore began performance under the contract. On October 27, the OHA reversed the size determination of the SBA regional office, concluding that General Offshore was not an eligible small business because of its affiliation with a large business minority shareholder (a subsidiary of Cable and Wireless (Marine)), an undisputed large business. Based on the OHA decision, Jensco requested Customs to terminate the contract with General Offshore and make award to Jensco, which would be next in line for award based on its price.