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B-188468, B-188570, APRIL 11, 1977

B-188468,B-188570 Apr 11, 1977
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PROTESTS AGAINST RESPONSIBILITY OF FIRM ISSUED CERTIFICATES OF COMPETENCY BY SBA WILL NOT BE CONSIDERED BY GAO. THE PROTESTERS CONTEND THAT THE TOOLING WHICH SIGMA INTENDED TO USE WAS OWNED BY MR. VANDIVER IN WHOLE OR IN PART AND IS PRESENTLY THE SUBJECT OF LITIGATION INVOLVING MR. THE RECORD IS NOT CLEAR AS TO WHETHER MR. VANDIVER SUBMITTED PROPOSALS FOR THE PROCUREMENTS BUT HE STATES THAT THE ARMY WILL BE HELD LIABLE FOR ANY UNAUTHORIZED USE OF THE TOOLING BY SIGMA. CONTENDS THAT THE TOOLING IS IN THE POSSESSION OF A CREDITOR AND THAT AN AWARD BASED ON THE AVAILABILITY TO SIGMA OF SUCH TOOLING IS UNFAIR TO THOSE OFFERORS WHICH WOULD BE REQUIRED TO PURCHASE NEW TOOLING. THE ARMY HAS INFORMALLY TOLD THIS OFFICE THAT THE PRE-AWARD SURVEY REPORTS REVEALED THAT THE TOOLING WHICH SIGMA INTENDED TO USE WAS NOT THAT CLAIMED BY MR.

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B-188468, B-188570, APRIL 11, 1977

PROTESTS AGAINST RESPONSIBILITY OF FIRM ISSUED CERTIFICATES OF COMPETENCY BY SBA WILL NOT BE CONSIDERED BY GAO.

WILLIAM EDWARD VANDIVER AND BADO ENGINEERING:

WILLIAM EDWARD VANDIVER AND BADO ENGINEERING (BADO) PROTEST THE AWARD OF CONTRACTS FOR BINOCULAR CASES TO SIGMA INDUSTRIES, INC. (SIGMA) UNDER REQUESTS FOR PROPOSALS (RFP) NO. DAAA09-76-R-9153 AND DAAA09-76-R-9450 ISSUED BY THE U.S. ARAMENT COMMAND, ROCK ISLAND, ILLINOIS (ARMY).

BASED ON THE INFORMATION SUBMITTED BY THE PROTESTERS TO THIS OFFICE, IT APPEARS THAT PRODUCTION OF THE BINOCULAR CASES REQUIRES SPECIAL TOOLING. THE PROTESTERS CONTEND THAT THE TOOLING WHICH SIGMA INTENDED TO USE WAS OWNED BY MR. VANDIVER IN WHOLE OR IN PART AND IS PRESENTLY THE SUBJECT OF LITIGATION INVOLVING MR. VANDIVER AND OTHERS. THE RECORD IS NOT CLEAR AS TO WHETHER MR. VANDIVER SUBMITTED PROPOSALS FOR THE PROCUREMENTS BUT HE STATES THAT THE ARMY WILL BE HELD LIABLE FOR ANY UNAUTHORIZED USE OF THE TOOLING BY SIGMA. BADO, WHICH SUBMITTED PROPOSALS, CONTENDS THAT THE TOOLING IS IN THE POSSESSION OF A CREDITOR AND THAT AN AWARD BASED ON THE AVAILABILITY TO SIGMA OF SUCH TOOLING IS UNFAIR TO THOSE OFFERORS WHICH WOULD BE REQUIRED TO PURCHASE NEW TOOLING.

THE ARMY HAS INFORMALLY TOLD THIS OFFICE THAT THE PRE-AWARD SURVEY REPORTS REVEALED THAT THE TOOLING WHICH SIGMA INTENDED TO USE WAS NOT THAT CLAIMED BY MR. VANDIVER BUT WAS NEW TOOLING TO BE BOUGHT FROM ANOTHER COMPANY. THE REPORTS, HOWEVER, RECOMMENDED AGAINST AWARDS TO SIGMA ON THE GROUNDS THAT ITS CREDIT MADE IT DOUBTFUL WHETHER THE NECESSARY TOOLING COULD BE SO PURCHASED. THE MATTERS WERE REFERRED TO THE SMALL BUSINESS ADMINISTRATION WHICH ISSUED CERTIFICATES OF COMPETENCY (COC) PURSUANT TO 15 U.S.C. 637. AWARDS WERE THEN MADE TO SIGMA.

THE THRESHOLD QUESTION IS WHETHER THE ISSUES PRESENTED HERE ARE PROPERLY REVIEWABLE BY THIS OFFICE UNDER ITS BID PROTEST PROCEDURES. 4 C.F.R. 20 (1976). WE THINK NOT. THE SOLICITATIONS DID NOT REQUIRE USE OF THE PRECISE TOOLING TO WHICH THE PROTESTERS REFER. THE TIMELY AVAILABILITY TO SIGMA OF THE NECESSARY TOOLING WAS INITIALLY FOR THE CONSIDERATION OF THE PROCURING OFFICIAL. HAVING FOUND THAT SIGMA WAS NOT RESPONSIBLE AS TO CAPACITY OR CREDIT, ARMED SERVICES PROCUREMENT REGULATION SEC. 1-705.4 REQUIRED THAT THE PROCURING OFFICIAL REFER THE MATTERS TO THE SBA AND TO ACCEPT THE COCS AS CONCLUSIVE AS TO SIGMA'S CAPACITY AND CREDIT. UNDER 15 U.S.C. 637(B)(7) (1920) THE SBA HAS THE AUTHORITY TO ISSUE OR DENY A COC AND THIS OFFICE HAS NO AUTHORITY TO REVIEW AN SBA DETERMINATION. ZINGER CONSTRUCTION COMPANY. INC., B-185390, DECEMBER 16, 1975, 75-2 CPD 397. INASMUCH AS SIGMA WAS TRYING TO BUY TOOLING OTHER THAN THAT CLAIMED BY MR. VANDIVER, WE THINK THE STATUS OF THE TOOLING UNDER DISPUTE WAS NOT MATERIAL OR RELEVANT TO THE SBA'S DETERMINATION EVEN IF, IN FACT, THE SBA WAS NOT AWARE OF THE DISPUTE BETWEEN THE PROTESTERS AND THE PRINCIPALS OF SIGMA AND VANBAR.

ACCORDINGLY, THE PROTESTS ARE DISMISSED.

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