B-180649, JUN 24, 1974

B-180649: Jun 24, 1974

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GAO WILL NOT REVIEW A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AS TO CAPACITY OR CREDIT WHERE SMALL BUSINESS BIDDER DOES NOT AVAIL ITSELF OF OPPORTUNITY TO FILE FOR COC. WAS ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC). WAS RESTRICTED TO SMALL BUSINESS FIRMS. FIFTY PERCENT OF THE REQUIRED QUANTITY WAS SET-ASIDE FOR SMALL BUSINESS FIRMS WHICH WERE ALSO LABOR SURPLUS AREA CONCERNS. SOCIETY BRAND HAT COMPANY (SOCIETY) WAS THE LOW BIDDER. THE SURVEY WHICH WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR). THE PROCURING ACTIVITY FURTHER REPORTS THAT AWARD WAS NOT RECOMMENDED ON THE SET-ASIDE PROTION BECAUSE SOCIETY BRAND'S MONTHLY PRODUCTION CAPACITY OF CAPS (APPROXIMATELY 19.

B-180649, JUN 24, 1974

GAO WILL NOT REVIEW A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AS TO CAPACITY OR CREDIT WHERE SMALL BUSINESS BIDDER DOES NOT AVAIL ITSELF OF OPPORTUNITY TO FILE FOR COC. SEE B-179033, FEBRUARY 22, 1974.

SOCIETY BRAND HAT COMPANY:

INVITATION FOR BIDS (IFB) NO. DSA100-74-B-0766, WAS ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF A QUANTITY OF WOOL SERGE CAPS. THE SOLICITATION, AS AMENDED, WAS RESTRICTED TO SMALL BUSINESS FIRMS. FIFTY PERCENT OF THE REQUIRED QUANTITY WAS SET-ASIDE FOR SMALL BUSINESS FIRMS WHICH WERE ALSO LABOR SURPLUS AREA CONCERNS. SOCIETY BRAND HAT COMPANY (SOCIETY) WAS THE LOW BIDDER. THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY OF SOCIETY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4. THE SURVEY WHICH WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR), RECOMMENDED NO AWARD. THE PROCURING ACTIVITY REPORTS, HOWEVER, THAT A REEVALUATION OF SOCIETY BY DCASR RESULTED IN A RECOMMENDATION THAT AWARD BE MADE ON THE FORMAL PORTION OF THE PROPOSED PROCUREMENT. THE PROCURING ACTIVITY FURTHER REPORTS THAT AWARD WAS NOT RECOMMENDED ON THE SET-ASIDE PROTION BECAUSE SOCIETY BRAND'S MONTHLY PRODUCTION CAPACITY OF CAPS (APPROXIMATELY 19,000) WOULD BE TOTALLY ABSORBED BY THE DELIVERY REQUIREMENTS OF THE FORMAL PORTION. SINCE DELIVERY UNDER THE SET-ASIDE PORTION WAS REQUIRED TO BE CONCURRENT WITH DELIVERY UNDER THE FORMAL PORTION, THE CONTRACTING OFFICER DETERMINED THAT SOCIETY BRAND'S PRODUCTION CAPABILITY WAS INADEQUATE FOR BOTH THE SET- ASIDE AND NON-SET-ASIDE PORTIONS. ACCORDINGLY, AWARD ON THE FORMAL PORTION WAS MADE TO SOCIETY ON MARCH 13, 1974, IN THE AMOUNT OF $761,742.95.

THE CRUX OF THE PROTEST INVOLVES THE ADMINISTRATIVE DETERMINATION THAT SOCIETY WAS NONRESPONSIBLE FOR THE SET-ASIDE PORTION OF THE SUBJECT AWARD. THE RECORD DISCLOSES THAT SUBSEQUENT TO THE AGENCY'S DETERMINATION, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). SEE ASPR 1-705.4(C)(II). A COC IS A WRITTEN INSTRUMENT ISSUED BY SBA CERTIFYING THAT THE SMALL COMPANY INVOLVED POSSESSES THE CAPACITY AND CREDIT TO PERFORM A SPECIFIC GOVERNMENT PROCUREMENT AND SUCH DETERMINATIONS BY SBA ARE BINDING. ON APRIL 8, 1974, THE CONTRACTING OFFICER WAS ADVISED BY SBA THAT SINCE SOCIETY HAD FAILED TO FILE A COC APPLICATION, THE CASE WAS BEING CLOSED.

IT HAS BEEN THE POSITION OF GAO THAT A SMALL BUSINESS WHICH FAILS TO FILE AN ACCEPTABLE COC APPLICATION WITH SBA, DOES NOT AVAIL ITSELF OF THE POSSIBLE RELIEF PROVIDED BY STATUTE AND REGULATION TO AFFORD SMALL BUSINESS CONCERNS A DEGREE OF PROTECTION AGAINST UNREASONABLE DETERMINATIONS AS TO THEIR CAPACITY OR CREDIT BY CONTRACTING OFFICERS. SUCH CIRCUMSTANCES, GAO SHOULD NOT UNDERTAKE A REVIEW OF A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY FOR REASONS PERTAINING TO CAPACITY OR CREDIT, SINCE SUCH ACTION WOULD, IN EFFECT, AMOUNT TO A SUBSTITUTION OF GAO FOR THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW SUCH DECISIONS BY CONTRACTING OFFICERS. B-179033, FEBRUARY 22, 1974.

ACCORDINGLY, THE PROTEST IS DENIED.