B-225194.2, DEC 23, 1986, 86-2 CPD 711
Highlights
ACTED CONTRARY TO SBA'S STANDARD OPERATING PROCEDURES (SOPS) IS AFFIRMED BECAUSE THE GENERAL ACCOUNTING OFFICE WILL NOT REVIEW THE SBA'S COMPLIANCE WITH ITS SOPS. STATES THAT IT HAS PREVIOUSLY FILLED SIMILAR REQUIREMENTS FOR THE FAA (THE SUBJECT SOLICITATION IS APPARENTLY FOR A COMMUNICATIONS SYSTEM) AND THAT 85 PERCENT OF THE PROTESTER'S INCOME WOULD BE IN DIRECT JEOPARDY AS A RESULT OF THIS PROCUREMENT. THE SBA MAY NOT CONSIDER A SECTION 8(A) PROCUREMENT IF THE SBA DETERMINES THAT A SMALL BUSINESS CONCERN MAY SUFFER A MAJOR HARDSHIP IF THE PROCUREMENT IS REMOVED FROM COMPETITION. THE RECORD DOES NOT INDICATE WHETHER GROSHELLE HAS FILED AN APPEAL WITH THE SBA REQUESTING THAT SBA EITHER MAKE OR RECONSIDER THE REQUIRED DETERMINATION OF WHETHER A SMALL BUSINESS CONCERN WILL BE HARMED BY THE SECTION 8(A) PROCUREMENT.
B-225194.2, DEC 23, 1986, 86-2 CPD 711
PROCUREMENT - SOCIO-ECONOMIC POLICIES - SMALL BUSINESS 8(A) SUBCONTRACTING - ADMINISTRATIVE POLICIES - COMPLIANCE - GAO REVIEW DIGEST: DISMISSAL OF PROTEST THAT SMALL BUSINESS ADMINISTRATION (SBA), IN APPROVING THE RESTRICTION OF A PROCUREMENT FOR AWARD UNDER THE SECTION 8(A), PROGRAM, ACTED CONTRARY TO SBA'S STANDARD OPERATING PROCEDURES (SOPS) IS AFFIRMED BECAUSE THE GENERAL ACCOUNTING OFFICE WILL NOT REVIEW THE SBA'S COMPLIANCE WITH ITS SOPS, WHICH MERELY PROVIDE INTERNAL SBA GUIDELINES, ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH.
GROSHELLE ASSOCIATES:
GROSHELLE ASSOCIATES REQUESTS RECONSIDERATION OF OUR NOVEMBER 17, 1986 DISMISSAL OF ITS PROTEST THAT THE FEDERAL AVIATION ADMINISTRATION (FAA) IMPROPERLY RESTRICTED SOLICITATION NO. DTFA01-86-R-0023 TO THE SMALL BUSINESS ADMINISTRATION (SBA) UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT.
WE AFFIRM THE DISMISSAL.
GROSHELLE, A SMALL BUSINESS, STATES THAT IT HAS PREVIOUSLY FILLED SIMILAR REQUIREMENTS FOR THE FAA (THE SUBJECT SOLICITATION IS APPARENTLY FOR A COMMUNICATIONS SYSTEM) AND THAT 85 PERCENT OF THE PROTESTER'S INCOME WOULD BE IN DIRECT JEOPARDY AS A RESULT OF THIS PROCUREMENT. GROSHELLE STATES THAT UNDER THE SBA'S STANDARD OPERATING PROCEDURE (SOP) NO. 80 05, PARA. 63E (SEPT. 4, 1979), THE SBA MAY NOT CONSIDER A SECTION 8(A) PROCUREMENT IF THE SBA DETERMINES THAT A SMALL BUSINESS CONCERN MAY SUFFER A MAJOR HARDSHIP IF THE PROCUREMENT IS REMOVED FROM COMPETITION, THEREBY DENYING THE CONCERN, OTHERWISE HISTORICALLY DEPENDENT ON SUCH RECURRING PROCUREMENT, THE OPPORTUNITY TO COMPETE. GROSHELLE HAS REQUESTED OUR CONSIDERATION OF THIS MATTER APPARENTLY BECAUSE IT BELIEVES SBA FAILED TO MAKE THE REQUIRED DETERMINATION. THE RECORD DOES NOT INDICATE WHETHER GROSHELLE HAS FILED AN APPEAL WITH THE SBA REQUESTING THAT SBA EITHER MAKE OR RECONSIDER THE REQUIRED DETERMINATION OF WHETHER A SMALL BUSINESS CONCERN WILL BE HARMED BY THE SECTION 8(A) PROCUREMENT.
SECTION 8(A) OF THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 637(A) (1982), AUTHORIZED THE SBA TO ENTER INTO CONTRACTS WITH GOVERNMENT AGENCIES AND TO ARRANGE FOR THE PERFORMANCE OF SUCH CONTRACTS BY LETTING SUBCONTRACTS TO SOCIALLY AND ECONOMICALLY DISADVANTAGED SMALL BUSINESS CONCERNS. UNDER THE ACT, A CONTRACTING OFFICER HAS BROAD DISCRETION TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS MAY BE AGREED TO BY THE AGENCY AND THE SBA. SBA'S SOPS MERELY PROVIDE INTERNAL SBA POLICIES AND GUIDELINES THAT COMPLIMENT THE SBA REGULATIONS IMPLEMENTING THE 8(A) PROGRAM AT 13 C.F.R. PART 124 (1986); THEREFORE WE DO NOT REVIEW THE SBA'S COMPLIANCE WITH THOSE INTERNAL PROCEDURES ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH. JANKE AND CO., INC., B-216152, AUG. 30, 1984, 84-2 CPD PARA. 242, AFF'D, 64 COMP.GEN. 63 (1984), 84-2 CPD PARA. 522. THE PROTESTER DOES NOT ALLEGE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS.
ACCORDINGLY, WE AFFIRM THE DISMISSAL.