B-180920, JUN 26, 1974

B-180920: Jun 26, 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 A CERTIFICATE OF COMPETENCY. WHERE PROTESTER WAS ALLOWED THE NORMAL PERIOD FOR FILING AN APPLICATION FOR CERTIFICATE OF COMPETENCY. THE GRANTING OF AN EXTENSION OF TIME IS DISCRETIONARY WITH THE GOVERNMENT AND BIDDER'S INTERESTS ARE NOT CONTROLLING. NO BASIS IS PRESENTED TO SUPPORT ALLEGATION OF FRAUDULENT DENIAL OF EXTENSION. 3. AFFIRMATIVE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICE AND. GAO WILL NOT DISTURB FINDING EXCEPT ON BASIS OF FRAUD.

B-180920, JUN 26, 1974

1. 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 A CERTIFICATE OF COMPETENCY. SEE B-179033, FEBRUARY 22, 1974. 2. WHERE PROTESTER WAS ALLOWED THE NORMAL PERIOD FOR FILING AN APPLICATION FOR CERTIFICATE OF COMPETENCY, THE GRANTING OF AN EXTENSION OF TIME IS DISCRETIONARY WITH THE GOVERNMENT AND BIDDER'S INTERESTS ARE NOT CONTROLLING. NO BASIS IS PRESENTED TO SUPPORT ALLEGATION OF FRAUDULENT DENIAL OF EXTENSION. 3. AFFIRMATIVE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICE AND, THEREFORE, IF PURSUANT TO APPLICABLE REGULATIONS CONTRACTING OFFICER FINDS PROPOSED CONTRACTOR RESPONSIBLE, GAO WILL NOT DISTURB FINDING EXCEPT ON BASIS OF FRAUD.

TO SOLAR LABORATORIES, INC.:

SOLAR LABORATORIES PROTESTS THE DETERMINATION BY THE CONTRACTING OFFICER THAT IT WAS A NONRESPONSIBLE OFFEROR AND THE REJECTION OF ITS LOW OFFER UNDER THE REFERENCED SOLICITATION ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF A QUANTITY OF CHEMICAL HEATING PADS. SOLAR ALSO PROTESTS THE AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF THE SUCCESSFUL OFFEROR.

IN ORDER TO RESOLVE WHETHER SOLAR WAS RESPONSIBLE THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY OF SOLAR PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4. THE SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR), NEW YORK, NEW YORK, WHICH SUBMITTED A REPORT RECOMMENDING NO AWARD. THE NEGATIVE RECOMMENDATION WAS BASED PRIMARILY UPON THE SURVEY TEAM'S UNSATISFACTORY FINDINGS IN THE AREAS OF QUALITY ASSURANCE CAPABILITY AND PERFORMANCE RECORD. ON THE BASIS OF THE NEGATIVE PREAWARD SURVEY REPORT, THE CONTRACTING OFFICER DETERMINED THAT SOLAR WAS NONRESPONSIBLE FOR LACK OF CAPACITY.

AS REQUIRED BY ASPR 1-705.4(C)(II), THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). A COC IS A WRITTEN INSTRUMENT ISSUED BY SBA CERTIFYING THAT THE SMALL BUSINESS CONCERN INVOLVED POSSESSES THE CAPACITY AND CREDIT NECESSARY TO PERFORM A SPECIFIC GOVERNMENT PROCUREMENT AND SUCH CERTIFICATIONS BY SBA ARE, BY LAW, CONCLUSIVE. 15 U.S.C. 637(B)(7). THE RECORD SHOWS THAT A COC WAS NOT ISSUED TO SOLAR SINCE IT FAILED TO SUBMIT THE APPLICATION REQUIRED BY SBA IN SUPPORT OF ITS RESPONSIBILITY.

A SMALL BUSINESS WHICH FAILS TO FILE AN ACCEPTABLE COC APPLICATION WITH SBA DOES NOT AVAIL ITSELF OF THE POSSIBLE PROTECTION PROVIDED BY STATUTE AND REGULATION TO SMALL BUSINESS CONCERNS AGAINST UNREASONABLE DETERMINATIONS AS TO THEIR CAPACITY OR CREDIT BY CONTRACTING OFFICERS. SUCH CIRCUMSTANCES, THIS OFFICE DOES 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 THIS OFFICE FOR THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO MAKE CONCLUSIVE DETERMINATIONS IN THIS AREA. 179033, FEBRUARY 22, 1974.

IN THIS CONNECTION, SOLAR FURTHER ALLEGES THAT THE CONTRACTING OFFICER FRAUDULENTLY DENIED IT AN OPPORTUNITY TO OBTAIN AN EXTENSION OF THE DEADLINE FOR FILING FOR A COC PENDING THE OUTCOME OF THE GOVERNMENT'S DETERMINATION AS TO THE ACCEPTABILITY OF SOLAR'S FIRST ARTICLES WHICH WERE SUBMITTED UNDER A CONTRACT FOR THE SAME ITEM. THE RECORD SHOWS THAT SOLAR WAS ALLOWED FIVE WORKING DAYS TO FURNISH THE NECESSARY APPLICATION WHICH IS CONSISTENT WITH SBA'S STANDARD PROCEDURES. SEE B-179033, SUPRA. THE GRANTING OF AN EXTENSION IS PROPERLY A MATTER WITHIN THE GOVERNMENT'S DISCRETION AND, IN THIS CONNECTION, THE BIDDER'S INTERESTS ARE NOT CONTROLLING. WE FIND NO BASIS WHATEVER, AND SOLAR HAS PRESENTED NONE, TO JUSTIFY ITS ATTRIBUTING SUCH REFUSAL IN THIS CASE TO A FRAUDULENT INTENT ON THE PART OF THE CONTRACTING OFFICER.

SOLAR PROTESTED THE SELECTION OF CAN-TITE RUBBER COMPANY ON THE BASIS THAT "PROCEEDINGS" HAD BEEN INSTITUTED BY THE MUNICIPALITY AGAINST THE PRINCIPALS OF CAN-TITE FOR VIOLATION OF THE LOCAL BUILDING CODE BECAUSE OF THE STORAGE OF "G" AGENT NERVE GAS AT THE FACILITY TO BE UTILIZED IN PERFORMING THE SUBJECT CONTRACT. SOLAR ALLEGED THAT IN THESE CIRCUMSTANCES CAN-TITE WOULD BE UNABLE TO COMPLY WITH CERTAIN CONTRACTUAL REQUIREMENTS AND THE GOOD MANUFACTURING PROCEDURES PRESCRIBED BY TITLE 21, PART 133 OF THE CODE OF FEDERAL REGULATIONS. IN ADDITION, IT IS ALLEGED THAT THE PRINCIPALS OF CAN-TITE ARE ALSO PRINCIPALS IN ANOTHER FIRM WHICH WAS DELINQUENT ON A GOVERNMENT CONTRACT. SOLAR ARGUES THAT THESE FACTS WOULD HAVE BEEN UNCOVERED IF A PREAWARD SURVEY HAD BEEN CONDUCTED ON CAN- TITE.

DSA HAS REPORTED THAT AWARD WAS MADE TO CAN-TITE WITHOUT CONDUCTING A PREAWARD SURVEY ON THE BASIS OF THAT FIRM'S SATISFACTORY PERFORMANCE, FROM A QUALITY AND DELIVERY STANDPOINT, UNDER PREVIOUS CONTRACTS FOR THE SAME ITEM.

DURING THE COURSE OF OUR DEVELOPMENT AND CONSIDERATION OF THIS PROTEST WE DECIDED, IN CONNECTION WITH ANOTHER MATTER, TO DISCONTINUE THE PRACTICE OF REVIEWING ACTIONS OF CONTRACTING OFFICERS RELATIVE TO AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY. IT IS OUR POSITION THAT SUCH DETERMINATIONS ARE LARGELY WITHIN THE DISCRETION OF CONTRACTING OFFICERS AND SHOULD NOT BE DISTURBED EXCEPT FOR FRAUD ON THE PART OF SUCH OFFICER. NO FRAUD HAVING BEEN ALLEGED OR DEMONSTRATED IN CONNECTION WITH THE SELECTION OF CAN-TITE, FURTHER CONSIDERATION NEED NOT BE GIVEN THIS MATTER. NEVERTHELESS, INASMUCH AS THE RECORD OF THIS CASE HAS BEEN DEVELOPED WE FEEL CONSTRAINED TO POINT OUT THAT, GENERALLY, PREAWARD SURVEYS ARE REQUIRED ONLY WHERE THERE IS INSUFFICIENT INFORMATION TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. ASPR 1-905.4(B). MOREOVER, DSA'S REPORT INDICATES THAT INQUIRIES WERE MADE TO APPROPRIATE MUNICIPAL OFFICIALS AND THAT THE ALLEGATION OF A BUILDING CODE VIOLATION WAS NOT SUBSTANTIATED. IN OUR OPINION, DSA ACTED REASONABLY IN MAKING THE AWARD TO CAN-TITE ON THE BASIS OF THAT FIRM'S PRIOR SATISFACTORY PERFORMANCE ON CONTRACTS FOR THE SAME ITEM.

ACCORDINGLY, THE PROTEST IS DENIED.