Protest Alleging Failure of Awardee To Comply With Definitive Responsibility Criteria of Solicitation

J. Baranello and Sons protested a contract award by General Services Administration (GSA) to PJR Construction Corporation for repair and improvement of the Federal Building in New York City. Baranello contended that Allied Elevator, the subconstractor PJR proposed to use, did not meet the experience requirements of the invitation for bids (IFB). The protest centered on the authority of the Small Business Administration (SBA) to issue a certificate of competency (COC) to PJR without its fulfilling the responsibility criteria of the IFB, as alleged by Baranello. Although the matter was before a court of competent jurisdiction, GAO agreed to consider the issues raised because the court expressed an interest in the way GAO would resolve the question and, in fact, deferred action pending a decision. GSA had twice ruled that Allied was not a responsible firm, based on its inexperience, but offered PJR the opportunity to name an alternative elevator subcontractor. After reviewing Allied's qualifications, and noting that the firm had retained a widely experienced elevator consultant, SBA recommended issuing a COC for Allied to PJR. Although GSA objected, the COC was issued, certifying PJR as a competent contractor, and Baranello thereupon protested to GAO. Although Allied's experience was not precisely that which the IFB prescribed, it has always been customary to accept equivalent experience as "definitive responsibility criteria" in establishing bidders' qualifications. The decision by SBA to issue a COC constituted acceptance of Allied's experience as definitive responsibility criteria, a determination which GAO will normally not consider without an allegation of fraud or a a contractor's failure to meet the IFB criteria. Here, however, the authority of SBA to issue the COC was questioned. After a review of applicable statutes, GAO decided that only a fraud showing could overturn a COC issued by SBA because discretion in such determinations was vested wholly with that that agency. The protest was denied.