Landmark Construction Corporation, B-281957.3, October 22, 1999

B-281957.3 Oct 22, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Indefinite-quantity contract improperly was made to large business. Proposed corrective action is reasonable. Where agency will (1) allow improperly awarded contract to expire. The Area V Office issued a determination on February 17 that MBI was other than small and thus ineligible for award on the basis that MBI was unusually reliant upon. Landmark did not have standing to file a size protest. /1/ Agency Report. The SBA District Office filed a size protest with the Area V Office (the contracting officer and SBA have the right to file protests at any time without the filing being considered untimely. The Area V Office issued a size determination finding that MBI was other than small for purposes of this procurement. View Decision Matter of: Landmark Construction Corporation File: B-281957.3 Date: October 22, 1999 DIGEST Attorneys DECISION Landmark Construction Corporation protests the Department of the Air Force's proposed corrective action in connection with Landmark's challenge to the award of an indefinite-delivery, indefinite-quantity (IDIQ) contract to Master Builder International Corporation (MBI) under request for proposals (RFP) No. F05604-97-R7019, a section 8(a) set-aside for simplified acquisition of base engineering requirements (SABER) at various locations in the Midwest. We dismiss the protest. The RFP contemplated multiple awards for a base year and 4 option years. RFP Sec. F-32. Thirteen offerors submitted proposals by the June 2, 1998 date for receipt of initial proposals. On January 14, 1999, the Air Force made awards to MBI and another offeror, Martinez Construction and Development Company. Contracting Officer's Statement at 1-2. Landmark, one of the unsuccessful offerors, filed a size protest challenging MBI's status as a small business on January 19, which the Air Force contracting officer forwarded to the Small Business Administration's (SBA) Area V Office on January 21. The contracting officer issued a stop work order suspending MBI's contract on February 4. The Area V Office issued a determination on February 17 that MBI was other than small and thus ineligible for award on the basis that MBI was unusually reliant upon, and thus affiliated as a joint venture with, its ostensible subcontractor. Agency Report, Tab 19, Size Determination Memorandum. MBI appealed the size determination to SBA's Office of Hearings and Appeals (OHA) on March 5. On May 5, OHA vacated the Area V Office size determination because, under SBA's regulations applicable at that time, Landmark did not have standing to file a size protest. /1/ Agency Report, Tab 22, OHA Decision. On May 12, the contracting officer lifted the stop work order on MBI's contract. On May 18, at the urging of Landmark, the SBA District Office filed a size protest with the Area V Office (the contracting officer and SBA have the right to file protests at any time without the filing being considered untimely, 13 C.F.R. Sec. 121.1004(b) (1999)). On May 28, the contracting officer informed SBA that he would allow MBI's performance under the contract to continue in the face of the protest. On June 30, the Area V Office issued a size determination finding that MBI was other than small for purposes of this procurement. Agency Report, Tab 26, Size Determination Memorandum. MBI appealed that determination to OHA on July 21. On September 9, OHA dismissed MBI's appeal as untimely filed. Protester's Comments attach. 1. In the meantime, on July 16, after the second size determination by SBA's Area V Office, but before OHA's dismissal of the second appeal, Landmark filed this protest seeking termination of MBI's contract on the basis that SBA had determined that it was not a small business. In a letter to our Office dated September 24, after the final OHA ruling, the Air Force stated that it had decided to take corrective action that it believed rendered the protest academic. In particular, the Air Force stated that it will (1) stop issuing delivery orders to MBI under its contract; (2) allow the contract to expire; and (3) promptly conduct a new competition by issuing a new solicitation seeking a replacement contractor for these services based upon requirements that mirror those found in the RFP-R7019 to the extent that they remain valid. Landmark objects to the proposed corrective action, maintaining that immediate termination of the SABER contract and all uncompleted delivery orders is required since MBI is not an eligible 8(a) concern. Protester's Comments at 2. In support of its argument, Landmark cites Adams Indus. Servs., Inc., B-280186, Aug. 28, 1998, 98-2 CPD Para. 56. In that case, we stated that, in the absence of countervailing reasons, we viewed it as inconsistent with the integrity of the competitive procurement system and the intent of the Small Business Act, 15 U.S.C. Secs.