Tiger Enterprises, Inc., B-292815.3; B-293439, January 20, 2004

Tiger Enterprises, Inc., B-292815.3; B-293439, January 20, 2004 TITLE: Tiger Enterprises, Inc., B-292815.3; B-293439, January 20, 2004 BNUMBER: B-292815.3; B-293439 DATE: January 20, 2004 ********************************************************************** Tiger Enterprises, Inc., B-292815.3; B-293439, January 20, 2004 Decision Matter of: Tiger Enterprises, Inc. File: B-292815.3; B-293439 Date: January 20, 2004 Monty Mauldin and Lillian K. Mauldin, for the protester. Julius Rothlein, Esq., and A. Neil Stroud, Esq., U.S. Marine Corps, and John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business Administration, for the agencies. Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Where the awardee was found by the Small Business Administration to be other than small based on a timely size protest filed after award on a small business set-aside, and this determination was not appealed, the agency, in the absence of legitimate countervailing reasons, should have terminated the contract and obtained these services from a small business. DECISION Tiger Enterprises, Inc. protests the decision of the U.S. Marine Corps (USMC) to continue performance of contracts awarded to Tarheel Specialties, Inc. under request for quotations (RFQ) No. M67001-04-Q-0001, issued as a small business set‑aside, for the lease and maintenance of washers and dryers at Camp Lejeune, North Carolina. Tiger contends that Tarheel was ineligible for award because it was a large business. We sustain the protests. In anticipation of the expiration of the USMC*s contract for these services with Block*s Management Company (a large business) on October 31, 2003, the agency issued a solicitation on July 22 as a small business set-aside. Five proposals, including Tiger*s and Tarheel*s, were submitted by the August 15 closing date in response to the solicitation. On August 28, the agency made award to Tarheel.[1] On September 1, Tiger filed a timely size protest against Tarheel with the Small Business Administration (SBA), which was subsequently joined by the contracting officer. Tiger*s protest was dismissed by SBA on September 15 because it was determined not to be an interested party. The contracting officer subsequently determined that the solicitation contained the incorrect North American Industrial Classification System (NAICS) code and corresponding size standard, and therefore terminated Tarheel*s contract for convenience and cancelled the solicitation on September 25. The agency then engaged in negotiations with the incumbent contractor, Block*s, to extend its contract. According to the USMC, these negotiations were unsuccessful and Block*s reiterated its intention to remove the machines provided under its contract by the October 31 expiration date. On October 8, the contracting officer executed a justification and approval (J&A) to obtain the services under other than full and open competition, based on a finding that the agency*s need for the services was of an unusual and compelling urgency, pursuant to 10 U.S.C. S: 2304(c)(2) (2000). The J&A stated that *[t]he loss of laundry capabilities will significantly impact and degrade their overall health, welfare, and quality of life, thereby, impeding the mission of the Marine Corps.* The J&A further stated that this requirement would be synopsized, and full and open procedures utilized, when the contracting activity was not operating under *urgent time restraints.* Agency Report (AR), Tab AA, J&A. On that same day, the agency issued this RFQ to the three firms that had submitted proposals under the previous solicitation, including Tarheel and Tiger. The RFQ contemplated the award of two fixed-price requirements contracts (one for each of two locations) for base periods of 11 months with three 1-year options. The RFQ was set aside for small business concerns and included the appropriate NAICS code and corresponding size standard. Quotations were originally due on October 10, 2 days after the RFQ was issued.[2] Prior to that time, Tiger protested that this acquisition should not be conducted on an urgency basis and that the timeframe for submission of quotations was insufficient. In response to the protest, the agency extended the due date to October 15. On October 13, Tiger renewed its protest that this acquisition should not be conducted on an urgency basis and that this urgency was intended to allow for award to Tarheel, even though that firm was a large business. Three vendors, including Tarheel and Tiger, submitted five quotations in response to the RFQ. Tarheel*s lowest-priced, technically acceptable quotation was selected for award.