B-164513, OCT. 17, 1968

B-164513: Oct 17, 1968

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YOU MET WITH A REPRESENTATIVE OF OUR OFFICE WHO DISCUSSED WITH YOU THE BASIS UPON WHICH YOUR COMPANY'S OFFER WAS REJECTED. WE ARE PROCEEDING TO CONSIDER THE PROTEST. YOUR OFFER TO FURNISH PART OF THE TOTAL URGENT REQUIREMENT FOR POLYPROPYLENE SANDBAGS LISTED IN THE REQUEST FOR PROPOSALS WAS IN LINE FOR CONSIDERATION BY THE CONTRACTING OFFICER. BASED UPON EVIDENCE CONTAINED IN THE PREAWARD SURVEY REPORT OF YOUR CAPABILITIES WHICH WAS SHOWN TO YOU AT YOUR CONFERENCE IN OUR OFFICE. THE DETERMINATION WITH RESPECT TO YOUR COMPANY'S RESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. WE STATED: "WE HAVE HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY AS TO A SMALL-BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP.

B-164513, OCT. 17, 1968

TO MR. KENNETH CAR ROAD:

IN TELEGRAM OF JUNE 5, 1968, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED THE REJECTION OF YOUR COMPANY'S OFFER UNDER DEFENSE SUPPLY AGENCY REQUEST FOR PROPOSALS DSA-400-68-R-5784.

SUBSEQUENT TO RECEIPT OF ADMINISTRATIVE REPORTS ON THE PROTEST, YOU MET WITH A REPRESENTATIVE OF OUR OFFICE WHO DISCUSSED WITH YOU THE BASIS UPON WHICH YOUR COMPANY'S OFFER WAS REJECTED. AT THAT TIME, YOU INDICATED THAT YOU WOULD RECONSIDER THE PROTEST AND THAT YOU WOULD ADVISE US WHETHER YOU DESIRED TO WITHDRAW THE PROTEST. OUR OFFICE WROTE YOU IN AUGUST AND AGAIN IN SEPTEMBER TO ASCERTAIN YOUR INTENTION IN THE MATTER. TO DATE, NO REPLY HAS BEEN RECEIVED. THEREFORE, WE ARE PROCEEDING TO CONSIDER THE PROTEST.

YOUR OFFER TO FURNISH PART OF THE TOTAL URGENT REQUIREMENT FOR POLYPROPYLENE SANDBAGS LISTED IN THE REQUEST FOR PROPOSALS WAS IN LINE FOR CONSIDERATION BY THE CONTRACTING OFFICER. HOWEVER, BASED UPON EVIDENCE CONTAINED IN THE PREAWARD SURVEY REPORT OF YOUR CAPABILITIES WHICH WAS SHOWN TO YOU AT YOUR CONFERENCE IN OUR OFFICE, THE CONTRACTING OFFICER DETERMINED THAT AN AFFIRMATIVE FINDING OF RESPONSIBILITY COULD NOT BE MADE FOR YOUR COMPANY BECAUSE OF ITS LACK OF PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE.

THE DETERMINATION WITH RESPECT TO YOUR COMPANY'S RESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. AFTER CONSIDERATION OF THE MATTER, THE SMALL BUSINESS ADMINISTRATION DECLINED TO ISSUE A CERTIFICATE TO YOUR COMPANY.

IN A SIMILAR SITUATION CONSIDERED BY OUR OFFICE IN B-159247, AUGUST 26, 1966, WE STATED:

"WE HAVE HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY AS TO A SMALL-BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP. GEN. 705. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION, OR TO REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY. NOR DO WE DISTURB THE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY APPEAR TO BE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY OR CAPRICIOUS.'

IN VIEW OF THE FOREGOING, NO LEGAL BASIS EXISTS FOR OUR OFFICE TO OBJECT TO THE REJECTION OF YOUR COMPANY'S PROPOSAL. THE PROTEST IS THEREFORE DENIED.