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B-188476, MARCH 25, 1977

B-188476 Mar 25, 1977
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SMALL BUSINESS' CAPACITY TO PERFORM ANTICIPATED CONTRACT IS FOR RESOLUTION BY CONTRACTING OFFICER AND BY SMALL BUSINESS ADMINISTRATION. PROTEST ASSERTING SUCH CAPACITY IS DISMISSED. (R & O) ALLEGES THAT IT WAS THE LOW RESPONSIBLE BIDDER ON ITEMS 5. R & O IS CONCERNED THAT THE CONTRACTING OFFICER ON THIS SOLICITATION MAY HAVE DETERMINED THAT R & O IS NOT A RESPONSIBLE OFFEROR AND THUS IS INELIGIBLE FOR AWARD. IF A BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED ON THE BASIS THAT IT IS NONRESPONSIBLE FOR LACK OF CAPACITY TO PERFORM A CONTEMPLATED CONTRACT. NORMALLY THE MATTER IS FOR FINAL DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION (SBA). WHICH IS EMPOWERED TO ISSUE A CERTIFICATE OF COMPETENCY (C0C).

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B-188476, MARCH 25, 1977

SMALL BUSINESS' CAPACITY TO PERFORM ANTICIPATED CONTRACT IS FOR RESOLUTION BY CONTRACTING OFFICER AND BY SMALL BUSINESS ADMINISTRATION. ACCORDINGLY, PROTEST ASSERTING SUCH CAPACITY IS DISMISSED.

R & O INDUSTRIES, INC.:

R & O INDUSTRIES, INC. (R & O) ALLEGES THAT IT WAS THE LOW RESPONSIBLE BIDDER ON ITEMS 5, 6, 7, 8, 10, 11, 24 AND 28 UNDER SOLICITATION FTAN-F2- 95107, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). IT PROTESTS THE POSSIBLE AWARD OF THESE ITEMS TO ANY BIDDER OTHER THAN ITSELF. R & O IS CONCERNED THAT THE CONTRACTING OFFICER ON THIS SOLICITATION MAY HAVE DETERMINED THAT R & O IS NOT A RESPONSIBLE OFFEROR AND THUS IS INELIGIBLE FOR AWARD. TO DEMONSTRATE ITS CAPACITY TO PERFORM, R & O HAS SUBMITTED INFORMATION TO GSA AND TO THIS OFFICE INTENDED TO SHOW ITS COMPLIANCE WITH THE TERMS OF ANOTHER RECENT GSA CONTRACT REQUIRING THE DELIVERY OF SIMILAR ITEMS.

IF A BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED ON THE BASIS THAT IT IS NONRESPONSIBLE FOR LACK OF CAPACITY TO PERFORM A CONTEMPLATED CONTRACT, NORMALLY THE MATTER IS FOR FINAL DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION (SBA), WHICH IS EMPOWERED TO ISSUE A CERTIFICATE OF COMPETENCY (C0C). FEDERAL PROCUREMENT REGULATIONS 1 1.708-2(A). R & O INDICATES THAT SUCH A REFERRAL HAS BEEN MADE IN ITS CASE.

UNDER 15 U.S.C. 637(B)(7) (1970), THE SBA HAS THE AUTHORITY TO ISSUE OR DENY A COC, WHICH CONCLUSIVELY DETERMINES THE CAPACITY OR CREDIT OF A SMALL BUSINESS CONCERN FOR A PARTICULAR PROCUREMENT. INDIAN MADE PRODUCTS COMPANY, B-187461, OCTOBER 5, 1976, 76-2 CPD 310. OUR OFFICE HAS NO AUTHORITY TO REVIEW A COC DETERMINATION, AND WILL NOT QUESTION A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY OF A SMALL BUSINESS CONCERN WHERE IT HAS BEEN AFFIRMED BY THE SBA'S DENIAL OF A COC. DREXEL INDUSTRIES, INC., B-186840, NOVEMBER 22, 1976, 76-2 CPD 439. BECAUSE THE ISSUES RAISED BY R & O'S PROTEST APPEAR SOLELY TO INVOLVE ITS CAPACITY TO PERFORM, FURTHER REVIEW OF THIS MATTER BY THIS OFFICE WOULD SERVE NO USEFUL PURPOSE; IF THE SBA SHOULD ISSUE A COC IN THIS INSTANCE, THUS AFFIRMING R & O'S CAPACITY, OF COURSE, THE PROTEST WOULD BE MOOT IN ANY CASE.

THE PROTEST, THEREFORE, IS DISMISSED.

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