B-183308, APR 30, 1975

B-183308: Apr 30, 1975

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GAO WILL NOT REVIEW THE CONTRACTING OFFICER'S DETERMINATION IN THE ABSENCE OF A COMPELLING REASON TO JUSTIFY SUCH REVIEW. (A JOINT VENTURE) (TURNER & FRALEY) HAVE PROTESTED TO OUR OFFICE A DETERMINATION OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER. FOR ITS FAILURE TO HAVE A SATISFACTORY RECORD OF INTEGRITY UNDER INVITATION FOR BIDS NO. THE ABOVE DETERMINATION WAS BASED ON A SUSPICION OF FRAUD IN THE PERFORMANCE OF A PRIOR PUBLIC CONTRACT WHICH IS THE SUBJECT OF AN INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION. THE APPROPRIATE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE WAS FURNISHED DOCUMENTATION RELEVANT TO THE CONTRACTING OFFICER'S DETERMINATION THAT THE FIRM WAS NOT RESPONSIBLE FOR REASON OTHER THAN DEFICIENCIES IN CAPACITY AND CREDIT.

B-183308, APR 30, 1975

WHERE SBA DECLINES TO APPEAL CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AS TO BIDDER'S TENACITY, PERSEVERENCE OR INTEGRITY, GAO WILL NOT REVIEW THE CONTRACTING OFFICER'S DETERMINATION IN THE ABSENCE OF A COMPELLING REASON TO JUSTIFY SUCH REVIEW, SUCH AS A SHOWING OF BAD FAITH OR FRAUD BY PROCURING OFFICIALS.

TURNER & FRALEY, INC., AND HOUGH & SCHMIDT CONSTRUCTION CO., INC. (A JOINT VENTURE):

TURNER & FRALEY, INC., AND HOUGH & SCHMIDT CONSTRUCTION CO., INC. (A JOINT VENTURE) (TURNER & FRALEY) HAVE PROTESTED TO OUR OFFICE A DETERMINATION OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER, UNDER SECTION 1-903.1(IV) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (1974 ED.), FOR ITS FAILURE TO HAVE A SATISFACTORY RECORD OF INTEGRITY UNDER INVITATION FOR BIDS NO. DACW51-75-B-0007 ISSUED BY UNITED STATES ARMY CORPS OF ENGINEERS. THE ABOVE DETERMINATION WAS BASED ON A SUSPICION OF FRAUD IN THE PERFORMANCE OF A PRIOR PUBLIC CONTRACT WHICH IS THE SUBJECT OF AN INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION. AFTER THE CONTRACTING OFFICER MADE THE ABOVE DETERMINATION, AND IN ACCORDANCE WITH ASPR SEC. 1-705.4(C)(VI) (1974 ED.), THE APPROPRIATE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE WAS FURNISHED DOCUMENTATION RELEVANT TO THE CONTRACTING OFFICER'S DETERMINATION THAT THE FIRM WAS NOT RESPONSIBLE FOR REASON OTHER THAN DEFICIENCIES IN CAPACITY AND CREDIT. UNDER THE ABOVE REGULATION, SBA MAY, WITHIN 5 DAYS, GIVE NOTICE TO THE CONTRACTING OFFICER OF AN INTENT TO APPEAL THE MATTER AND WITHIN 10 DAYS OF SUCH NOTICE SBA IS REQUIRED TO PROVIDE THE HEAD OF THE PROCURING ACTIVITY INFORMATION AND RECOMMENDATIONS WHICH WOULD MATERIALLY BEAR ON ANY APPROVAL ACTION.

IN THE INSTANT CASE, SBA DECLINED TO APPEAL THE DETERMINATION OF THE CONTRACTING OFFICER.

OUR OFFICE HAS HELD THAT THE PROCEDURES OF SBA PROVIDE AN EFFECTIVE PROCESS FOR REVIEWING AGENCY DETERMINATIONS OF NONRESPONSIBILITY AS REGARDS A BIDDER'S TENACITY, PERSEVERENCE AND INTEGRITY AND, THEREFORE, WE WILL NOT UNDERTAKE TO REVIEW SUCH A DETERMINATION BY THE CONTRACTING OFFICER UNLESS THERE IS A COMPELLING REASON TO JUSTIFY SUCH ACTION, SUCH AS A SHOWING OF BAD FAITH OR FRAUD ON THE PART OF THE ADMINISTRATIVE OFFICIALS INVOLVED. MATTER OF BUILDING MAINTENANCE SPECIALISTS, INC., 54 COMP. GEN. (B-181986, FEBRUARY 28, 1975).

WE DO NOT FIND SUCH A REASON HERE, AND THEREFORE, THE PROTEST IS DENIED.