[Protest of Several Army Nonresponsibility Determinations]

A small business firm protested: (1) several successive Army nonresponsibility determinations where it submitted the low offer; (2) the Army's delay in awarding it a contract as a low offerer under a solicitation where the Small Business Administration (SBA) was prepared to issue it a certificate of competency (COC); (3) its suspension as a government contractor; and (4) the Army's delay of work and suspension of work progress payments under the contracts which it had been awarded. The protester contended that the Army acted in bad faith in making its nonresponsibility determinations since the real basis for the unfavorable preaward evaluations was not its financial responsibility but an ongoing criminal investigation. GAO has held that: (1) matters that involve contract administration are the responsibility of the contracting agency and are not considered under bid protest regulations; (2) it is the responsibility of the small business firm to file a complete and acceptable COC application in order to avail itself of the possible protection of the regulations against unreasonable determinations of responsibility; (3) a showing of bad faith requires undeniable or irrefutable proof that the agency had a specific and malicious intent to injure the party alleging bad faith; (4) an agency is under no obligation to make award during the pendency of an appeal to SBA; and (5) its review of an agency action to suspend an offerer after bid opening is to ensure that the agency has not acted arbitrarily to avoid awarding a contract to the apparent low bidder. GAO found that the protester had not produced sufficient evidence that the procurement officials acted in bad faith in connection with the nonresponsibility determinations, and a review of the suspension report concluded that the Army did not act arbitrarily in suspending the protester. Accordingly, the protest was dismissed in part and denied in part and, since the protest regarding the nonresponsibility determinations was dismissed, the request for bid preparation costs was denied.