B-179959, FEB 15, 1974

B-179959: Feb 15, 1974

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SMALL BUSINESS BIDDER WHO WAS FOUND NONRESPONSIBLE AND WHO FAILED TO FILE TIMELY APPLICATION FOR COC WITH SBA HAS NO BASIS OF COMPLAINT. FILING APPLICATION WITH SBA FOR COC BY ADMINISTRATIVELY DETERMINED NONRESPONSIBLE BIDDER IS PREREQUISITE FOR DETERMINATION BY SBA OF ELIGIBILITY OF BIDDER FOR AWARD. TIME LIMITS FOR FILING SUCH APPLICATION ARE FOR DETERMINATION BY SBA. DAAA25-73-B0716 WAS ISSUED BY THE FRANKFORD ARSENAL. BIDS WERE RECEIVED FROM FOUR FIRMS. THE CONTRACTING OFFICER DETERMINED THAT THE LOW AND SECOND LOW BIDDERS WERE NONRESPONSIBLE. THE ISSUE OF ITS NONRESPONSIBILITY WAS NOT REFERRED TO SBA. WAS CONDUCTED JOINTLY BY FRANKFORD ARSENAL TECHNICAL PERSONNEL AND BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR).

B-179959, FEB 15, 1974

1. SMALL BUSINESS BIDDER WHO WAS FOUND NONRESPONSIBLE AND WHO FAILED TO FILE TIMELY APPLICATION FOR COC WITH SBA HAS NO BASIS OF COMPLAINT. SEE CASES CITED. 2. FILING APPLICATION WITH SBA FOR COC BY ADMINISTRATIVELY DETERMINED NONRESPONSIBLE BIDDER IS PREREQUISITE FOR DETERMINATION BY SBA OF ELIGIBILITY OF BIDDER FOR AWARD; FURTHERMORE, TIME LIMITS FOR FILING SUCH APPLICATION ARE FOR DETERMINATION BY SBA. SEE CASES CITED.

TO UNITED ENGINEERING, INC.:

ON JUNE 6, 1973, INVITATION FOR BIDS (IFB) NO. DAAA25-73-B0716 WAS ISSUED BY THE FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, FOR 275 BALLISTIC DRIVES. BIDS WERE RECEIVED FROM FOUR FIRMS. THE CONTRACTING OFFICER DETERMINED THAT THE LOW AND SECOND LOW BIDDERS WERE NONRESPONSIBLE. THE SMALL BUSINESS ADMINISTRATION (SBA) DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY (COC) TO THE LOW BIDDER. SINCE THE SECOND LOW BIDDER REFUSED TO EXTEND ITS BID ACCEPTANCE PERIOD, THE ISSUE OF ITS NONRESPONSIBILITY WAS NOT REFERRED TO SBA.

A PREAWARD SURVEY OF THE THIRD LOW BIDDER, UNITED ENGINEERING, INC. (UNITED), WAS CONDUCTED JOINTLY BY FRANKFORD ARSENAL TECHNICAL PERSONNEL AND BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR), DETROIT, MICHIGAN. THE REPORT SUBMITTED BY DCASR RECOMMENDED THAT NO AWARD BE MADE TO UNITED BECAUSE THE SURVEY REVEALED THAT UNITED WAS UNSATISFACTORY IN THE AREAS OF TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, PURCHASING AND SUBCONTRACTING, QUALITY ASSURANCE CAPABILITY, LABOR RESOURCE, PERFORMANCE RECORD, AND ABILITY TO MEET THE DELIVERY SCHEDULE OF THE SUBJECT CONTRACT. BASED UPON THE REPORT OF THE SURVEY TEAM, THE CONTRACTING OFFICER DETERMINED THAT UNITED WAS NONRESPONSIBLE.

IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 705.4, THE CONTRACTING OFFICER SUBMITTED THE MATTER OF UNITED'S NONRESPONSIBILITY TO SBA FOR A POSSIBLE ISSUANCE OF A COC. BY LETTER DATED OCTOBER 23, 1973, SBA ADVISED THE CONTRACTING OFFICER THAT UNITED WOULD FILE FOR A COC AND THAT ITS CLOSING DATE WAS NOVEMBER 13, 1973.

UNITED INFORMED SBA THAT IT HAD NOT RECEIVED SBA'S REQUEST FOR INFORMATION UNTIL OCTOBER 30, 1973. SBA GRANTED UNITED AN EXTENSION OF TIME FROM OCTOBER 30, 1973, UNTIL THE CLOSE OF BUSINESS ON NOVEMBER 2, 1973, TO FILE THE APPLICATION FOR A COC. IN ADDITION, SBA REQUESTED AN EXTENSION FROM THE CONTRACTING OFFICER TO NOVEMBER 16, 1973, FOR CONSIDERATION OF THE MATTER. THIS REQUEST WAS GRANTED BY THE CONTRACTING OFFICER. BY LETTER DATED NOVEMBER 5, 1973, SBA ADVISED THE CONTRACTING OFFICER THAT UNITED HAD FAILED TO FILE AN APPLICATION FOR A CERTIFICATE OF COMPETENCY WITHIN THE PRESCRIBED TIME LIMITS AND, THEREFORE, THAT SBA WAS CLOSING ITS FILE ON THE MATTER.

BY LETTER AND TELEGRAM DATED OCTOBER 26, 1973, UNITED FILED A PROTEST WITH OUR OFFICE AGAINST THE AWARD OF THE SUBJECT CONTRACT TO ANY OTHER FIRM. FOR THE REASONS SET FORTH BELOW, THE PROTEST OF UNITED IS DENIED.

FIRST, UNITED CONTENDS THAT IT IS NOT NECESSARY TO FILE FOR A COC SINCE UNITED HAS PERFORMED CONTRACTS OF EQUAL OR GREATER DOLLAR VOLUME IN THE PAST. THE PAST PERFORMANCE OF CONTRACTS OF EQUAL OR GREATER DOLLAR VOLUME THAN THE CONTRACT UNDER CONSIDERATION HAS NO BEARING ON THE NECESSITY OF FILING FOR A COC IN ORDER TO BE ELIGIBLE UNDER A LATER SOLICITATION. SINCE THE CONTRACTING OFFICER FOUND UNITED TO BE NONRESPONSIBLE, THE CONTRACTING OFFICER'S DETERMINATION WAS FORWARDED TO SBA FOR CONSIDERATION. PURSUANT TO 15 U.S.C. 637(B)(7), THE ADMINISTRATOR OF SBA HAS THE AUTHORITY "TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS *** WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL BUSINESS CONCERN *** TO PERFORM A SPECIFIC GOVERNMENT CONTRACT ***." ABSENT A CERTIFICATE OF COMPETENCY, A SMALL BUSINESS FIRM IS NOT ELIGIBLE FOR AWARD UNLESS THE CONTRACTING OFFICER MAKES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. SINCE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WAS NOT MADE, UNITED IS NOT ELIGIBLE FOR AWARD.

SECOND, UNITED CONTENDS THAT THE OCTOBER 30, 1973, DEADLINE FOR FILING A COC WITH SBA WAS UNREALISTIC SINCE UNITED HAD NOT RECEIVED THE APPLICATION FORMS AS OF OCTOBER 26, 1973, THE DATE OF ITS PROTEST. HOWEVER, UNITED WAS GRANTED AN EXTENSION OF TIME TO FILE THE COC APPLICATION SINCE UNITED'S RECEIPT OF THE REQUISITE FORMS FROM SBA WAS APPARENTLY DELAYED BY THE MAIL. UNITED STATES THAT THE MILITARY ALLOWS A MINIMUM OF 15 WORKING DAYS TO FILE FOR A COC. IT IS THE POSITION OF OUR OFFICE THAT THE AMOUNT OF TIME TO BE ALLOWED A PROSPECTIVE CONTRACTOR FOR THE SUBMISSION OF EVIDENCE IN SUPPORT OF A COC IS FOR DETERMINATION BY SBA. B-152198, NOVEMBER 6, 1963.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4(C) PROVIDES:

"*** THE AWARD SHALL BE WITHHELD UNTIL SBA ACTION CONCERNING ISSUANCE OF A COC OR UNTIL 15 WORKING DAYS AFTER THE SBA IS SO NOTIFIED, WHICHEVER IS EARLIER ***."

FIFTEEN WORKING DAYS ARE NOT PROVIDED BY REGULATION FOR THE FILING OF A COC. RATHER, THE SBA IS ALLOWED 15 WORKING DAYS FOR THE PROCESSING OF A COC BEGINNING WITH THE FIRST DAY AFTER RECEIPT OF AN ACCEPTABLE REFERRAL. PARAGRAPH 12 OF THE SBA STANDARD OPERATING PROCEDURE (SOP 60 04) GOVERNING THE COC PROGRAM PRESCRIBES A 5-WORKING DAY PERIOD FOR FILING COC APPLICATIONS. SINCE THE FILING OF AN APPLICATION FOR A COC IS ONLY ONE PART OF THE TOTAL ADMINISTRATIVE PROCESS WHICH MUST BE COMPLETED WITHIN THE 15 WORKING DAYS, THE TIME LIMIT FOR SUCH FILING IS, OF NECESSITY, A SHORTER PERIOD THAN THE 15 WORKING DAYS ALLOWED FOR SBA PROCESSING.

THIRD, UNITED CONTENDS THAT THE NEGATIVE PREAWARD SURVEY IS ARBITRARY AND UNACCEPTABLE "*** UNLESS IT CAN BE PROVEN WITHOUT A DOUBT THAT UNITED ENGINEERING AND ITS FACILITIES AND PERSONNEL ARE INCAPABLE." WHERE A LOW SMALL BUSINESS BIDDER FAILS TO FILE A TIMELY APPLICATION FOR A COC WITH SBA, OUR OFFICE HAS NO BASIS TO REVIEW THE CONTRACTING OFFICER'S DETERMINATION THAT THE BIDDER WAS NONRESPONSIBLE. SUCH ACTION WOULD, IN EFFECT, AMOUNT TO A SUBSTITUTION, AT THE OPTION OF A BIDDER, OF OUR OFFICE FOR SBA, THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW CONTRACTING OFFICERS' DECISIONS AS TO THE CAPACITY OR CREDIT OF SMALL BUSINESS CONCERNS. SEE B-160451, JANUARY 13, 1967; B 156069, JUNE 15, 1965; B-154865, SEPTEMBER 14, 1964; AND B-173499, OCTOBER 18, 1971.