B-179738(2), FEB 20, 1974

B-179738(2): Feb 20, 1974

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CONTRACTING OFFICER'S SUBSEQUENT DETERMINATION OF NONRESPONSIBILITY IS NOT WITHOUT BASIS IN FACT. THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY CONCERNING THE MATTER. ALSO RETURNED HEREWITH IS THE ABOVE-MENTIONED FILE. IT HAS BEEN OBSERVED THAT ALTHOUGH THE SBA SENT THE OFFEROR A LETTER INDICATING THAT THE COC WAS DENIED BECAUSE OF INSUFFICIENT EVIDENCE OF FINANCIAL CAPACITY - A DIFFERENT BASIS FOR DENIAL THAN THAT RECOMMENDED IN THE PREAWARD SURVEY REPORT - THE CONTRACTING OFFICER WAS NOT ADVISED OF THE SPECIFIC BASIS FOR THE DENIAL. WE BELIEVE THAT A COPY OF THE LETTER TO THE OFFEROR SHOULD HAVE BEEN SENT TO THE CONTRACTING OFFICER.

B-179738(2), FEB 20, 1974

ALTHOUGH SBA CONSIDERED OFFEROR NONRESPONSIBLE ON DIFFERENT BASIS THAN FOUND BY CONTRACTING OFFICER INITIALLY, IN VIEW OF SBA FINDING, CONTRACTING OFFICER'S SUBSEQUENT DETERMINATION OF NONRESPONSIBILITY IS NOT WITHOUT BASIS IN FACT. SEE DECISION CITED.

TO MR. THOMAS S. KLEPPE:

WITH REGARD TO THE LETTER OF OCTOBER 3, 1973, FROM THE ACTING ASSOCIATE GENERAL COUNSEL, FORWARDING FILE NO. COC-IV-704-JVL, MARINE RESOURCES, INC., THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY CONCERNING THE MATTER.

ALSO RETURNED HEREWITH IS THE ABOVE-MENTIONED FILE.

IN OUR REVIEW OF THE PROTEST, IT HAS BEEN OBSERVED THAT ALTHOUGH THE SBA SENT THE OFFEROR A LETTER INDICATING THAT THE COC WAS DENIED BECAUSE OF INSUFFICIENT EVIDENCE OF FINANCIAL CAPACITY - A DIFFERENT BASIS FOR DENIAL THAN THAT RECOMMENDED IN THE PREAWARD SURVEY REPORT - THE CONTRACTING OFFICER WAS NOT ADVISED OF THE SPECIFIC BASIS FOR THE DENIAL. SINCE THE SURVEY REPORT RECOMMENDATION TURNED ON A STANDARD OF RESPONSIBILITY DIFFERENT THAN THAT RELIED UPON BY SBA, WE BELIEVE THAT A COPY OF THE LETTER TO THE OFFEROR SHOULD HAVE BEEN SENT TO THE CONTRACTING OFFICER. IN THAT CONNECTION, SEE ASPR 1-705.4(H) WHICH PROVIDES:

"WHEN THE CONTRACTING OFFICER HAS QUESTIONED ONLY ONE OF THE GENERAL STANDARDS OF RESPONSIBILITY (E.G., CAPACITY) OF A SMALL BUSINESS OFFEROR, BUT THE SBA HAS DECLINED TO ISSUE A COC, DUE TO ITS FINDINGS CONCERNING THE OFFEROR'S CAPABILITY TO PERFORM UNDER A DIFFERENT STANDARD OF RESPONSIBILITY (E.G. CREDIT) THE RESPONSIBLE SBA OFFICE WILL INFORM THE CONTRACTING OFFICER OF THE BASIS FOR ITS DECISION. ***" ..END :