B-182254, JAN 22, 1975

B-182254, JAN 22, 1975

CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AS TO CAPACITY OR CREDIT OF SMALL BUSINESS CONCERN WHICH DID NOT AVAIL ITSELF OF OPPORTUNITY TO FILE FOR SBA CERTIFICATE OF COMPETENCY WILL NOT BE REVIEWED, SINCE THAT WOULD AMOUNT TO SUBSTITUTION OF AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW DETERMINATION.

WEST ELECTRONICS, INC.:

WEST ELECTRONICS, INC. (WEST), HAS PROTESTED A FINDING OF NONRESPONSIBILITY BY THE UNITED STATES AIR FORCE UNDER REQUEST FOR PROPOSALS (RFP) NO. F09603-74-R-0942 ISSUED ON APRIL 3, 1974, AT WARNER ROBINS AIR FORCE BASE, GEORGIA.

SINCE THE APPARENT LOW PROPOSAL WAS SUBMITTED BY WEST, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY BE CONDUCTED ON WEST ON JULY 2, 1974. ON JULY 31, 1974, A NEGATIVE REPORT FROM THE SURVEY TEAM WAS RECEIVED BY THE CONTRACTING OFFICER. THE AREAS FOUND TO BE UNSATISFACTORY WERE: PRODUCTION AND FINANCIAL CAPABILITY, PURCHASING AND SUBCONTRACTING, PAST PERFORMANCE RECORD AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. BASED ON THIS INFORMATION, THE CONTRACTING OFFICER DETERMINED WEST TO BE NONRESPONSIBLE. PURSUANT TO THE ARMED SERVICES PROCUREMENT REGULATION SEC. 1-705.4 (1974 ED.), THE CONTRACTING OFFICER ON AUGUST 1, 1974, REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION OF THE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). SEPTEMBER 5, 1974, THE SBA ADVISED THE CONTRACTING OFFICER THAT WEST HAD NOT FILED AN APPLICATION FOR A COC WITHIN THE REQUIRED TIME LIMIT AND SBA WAS CLOSING ITS FILE ON THE MATTER. BASED ON THIS ACTION, THE DETERMINATION OF NONRESPONSIBILITY WAS REAFFIRMED BY THE CONTRACTING OFFICER.

WHILE WEST HAS MADE SEVERAL ARGUMENTS THAT ITS FINANCIAL CAPABILITY WAS MISSTATED IN THE PREAWARD SURVEY AND HAS SUBSEQUENTLY IMPROVED, THESE MATTERS WILL NOT BE CONSIDERED BY OUR OFFICE. A SMALL BUSINESS WHICH FAILS TO FILE AN ACCEPTABLE COC APPLICATION WITH SBA DOES NOT AVAIL ITSELF OF THE POSSIBLE RELIEF PROVIDED BY STATUTE AND REGULATION TO AFFORD SMALL BUSINESS CONCERNS A DEGREE OF PROTECTION AGAINST UNREASONABLE DETERMINATIONS AS TO THEIR CAPACITY OR CREDIT BY CONTRACTING OFFICERS. SUCH CIRCUMSTANCES, OUR OFFICE WILL NOT UNDERTAKE A REVIEW OF A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY FOR REASONS PERTAINING TO CAPACITY OR CREDIT, SINCE SUCH ACTION WOULD, IN EFFECT, AMOUNT TO A SUBSTITUTION OF OUR OFFICE FOR THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW SUCH DECISIONS. MATTER OF INFLATED PRODUCTS CO., INC. ET AL., B-181522, NOVEMBER 19, 1974.

WEST HAS STATED THAT THE REASON IT DID NOT FILE FOR A COC WAS THAT IT HAD PENDING AT THE SAME TIME A REQUEST FOR RELIEF UNDER PUBLIC LAW 85 804, WHICH IF GRANTED WOULD HAVE CURED ITS FINANCIAL ILLS. HOWEVER, THIS REQUEST WAS DENIED AND BY THAT TIME THE DEADLINE FOR FILING AN APPLICATION AT SBA HAD PASSED.

WE MUST VIEW THE ABOVE CHOICE AS TO THE COURSE OF ACTION TAKEN TO BE A BUSINESS JUDGMENT MADE BY A BIDDER WHICH DOES NOT CHANGE THE SCOPE OF REVIEW BY OUR OFFICE.

ACCORDINGLY, THE PROTEST IS DENIED.