B-206301.2, APR 1, 1982

B-206301.2, APR 1, 1982

DIGEST: GAO WILL NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF A SMALL BUSINESS FIRM'S RESPONSIBILITY, NOTWITHSTANDING THAT THE SMALL BUSINESS ADMINISTRATION WILL NOT CONSIDER THE MATTER (SINCE THAT AGENCY ONLY REVIEWS NEGATIVE RESPONSIBILITY DETERMINATIONS), UNLESS FRAUD IS SHOWN OR DEFINITIVE RESPONSIBILITY CRITERIA ALLEGEDLY WERE NOT APPLIED.

VOYAGER EMBLEMS, INC. - RECONSIDERATION:

VOYAGER EMBLEMS, INC. REQUESTS THAT WE RECONSIDER OUR DECISION VOYAGER EMBLEMS, INC., B-206301, FEBRUARY 10, 1982, 82-1 CPD 127, IN WHICH WE DISMISSED THE FIRM'S PROTEST AGAINST THE AWARD OF A CONTRACT FOR SHOULDER INSIGNIA TO DAAL TRIMMING AND EMBLEM CO. UNDER DEFENSE LOGISTICS AGENCY SOLICITATION NO. 100-81-B-1484.

WE AFFIRM OUR DECISION.

VOYAGER HAD QUESTIONED DAAL'S FINANCIAL ABILITY TO PERFORM THE CONTRACT, AS WELL AS DAAL'S STATUS AS A REGULAR DEALER UNDER THE TERMS OF THE WALSH- HEALEY ACT, 41 U.S.C. SECS. 35-45 (1976). WE DISMISSED THE PROTEST ABOUT DAAL'S FINANCIAL ABILITY BECAUSE IT INVOLVED THE AFFIRMATIVE DETERMINATION OF THE FIRM'S RESPONSIBILITY, WHICH WE DO NOT REVIEW ABSENT AN ALLEGATION OF FRAUD ON THE PART OF PROCURING OFFICIALS OR THE FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA LISTED IN THE SOLICITATION, AND NEITHER EXCEPTION APPLIED. WE DISMISSED THE PROTEST RELATING TO DAAL'S STATUS AS A REGULAR DEALER OR MANUFACTURER SINCE THAT IS A MATTER TO BE DETERMINED BY THE CONTRACTING AGENCY IN THE FIRST INSTANCE, SUBJECT TO REVIEW BY THE SMALL BUSINESS ADMINISTRATION (SBA) IF A SMALL BUSINESS IS INVOLVED, AND THE SECRETARY OF LABOR.

IN THE RECONSIDERATION REQUEST, VOYAGER COMPLAINS THAT THE SBA HAS INDICATED THAT IT WILL NOT REVIEW DAAL'S RESPONSIBILITY UNLESS THE DEFENSE LOGISTICS AGENCY DETERMINES THAT DAAL IS NOT RESPONSIBLE, AND ARGUES THAT THIS OFFICE THEREFORE SHOULD CONSIDER THE MATTER. IN THIS RESPECT, SBA'S CONCLUSIVE AUTHORITY TO DETERMINE ALL MATTERS OF A SMALL BUSINESS FIRM'S RESPONSIBILITY IS INTENDED TO PRECLUDE THE REJECTION OF A SMALL BUSINESS ON RESPONSIBILITY GROUNDS WITHOUT SBA REVIEW. SEE 15 U.S.C. SEC. 637(B)(7) (SUPP. III 1979).

AS WE ADVISED IN OUR FEBRUARY 10 DECISION, HOWEVER, OUR OFFICE DOES NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT IN LIMITED CIRCUMSTANCES. WHERE, AS HERE, NONE OF THOSE CIRCUMSTANCES APPLY, THE MERE FACT THAT THE SBA WILL NOT REVIEW A FINDING THAT A SMALL BUSINESS FIRM IS RESPONSIBLE AFFORDS NO BASIS FOR THIS OFFICE TO DO SO.

THE PRIOR DECISION IS AFFIRMED.