B-199550.5, FEBRUARY 27, 1981, 60 COMP.GEN. 283

B-199550.5: Feb 27, 1981

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CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - EFFECT OF ISSUANCE OF CERTIFICATE OF COMPETENCY BY SBA - DEFINITIVE RESPONSIBILITY CRITERIA WHERE SMALL BUSINESS ADMINISTRATION (SBA) HEADQUARTERS WAS AWARE OF DEFINITIVE RESPONSIBILITY CRITERIA IN SOLICITATION BUT DECIDES COMPLIANCE WITH CRITERIA IS NOT NECESSARY FOR ISSUANCE OF CERTIFICATE OF COMPETENCY (COC). PROTESTER'S "VITAL INFORMATION" REGARDING SMALL BUSINESS CONCERN'S ABILITY TO MEET INVITATION FOR BID'S DEFINITIVE RESPONSIBILITY CRITERIA IS IRRELEVANT TO SBA'S DECISIONS AND SBA'S ALLEGED FAILURE TO CONSIDER THAT INFORMATION PROVIDES NO BASIS FOR GENERAL ACCOUNTING OFFICE REVIEW OF SBA'S ACTION. SINCE BOTH ACTIONS ARE BASED ON THE SAME FACTS.

B-199550.5, FEBRUARY 27, 1981, 60 COMP.GEN. 283

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - EFFECT OF ISSUANCE OF CERTIFICATE OF COMPETENCY BY SBA - DEFINITIVE RESPONSIBILITY CRITERIA WHERE SMALL BUSINESS ADMINISTRATION (SBA) HEADQUARTERS WAS AWARE OF DEFINITIVE RESPONSIBILITY CRITERIA IN SOLICITATION BUT DECIDES COMPLIANCE WITH CRITERIA IS NOT NECESSARY FOR ISSUANCE OF CERTIFICATE OF COMPETENCY (COC), PROTESTER'S "VITAL INFORMATION" REGARDING SMALL BUSINESS CONCERN'S ABILITY TO MEET INVITATION FOR BID'S DEFINITIVE RESPONSIBILITY CRITERIA IS IRRELEVANT TO SBA'S DECISIONS AND SBA'S ALLEGED FAILURE TO CONSIDER THAT INFORMATION PROVIDES NO BASIS FOR GENERAL ACCOUNTING OFFICE REVIEW OF SBA'S ACTION.

MATTER OF: E-SYSTEMS, INC., FEBRUARY 27, 1981:

E-SYSTEMS, INC. REQUESTS RECONSIDERATION OF OUR DECISION IN SENTINEL ELECTRONICS, INC.; E-SYSTEMS, INC.; CINCINNATI ELECTRONICS CORPORATION, B-199550.2, B-199550.3 AND B-199550.4, JANUARY 29, 1981, 60 COMP.GEN. 202, 81-1 CPD 52. CONCURRENT WITH ITS REQUEST FOR RECONSIDERATION, E SYSTEMS ALSO PROTESTS THE PROPOSED AWARD OF A CONTRACT TO SENTINEL. SINCE BOTH ACTIONS ARE BASED ON THE SAME FACTS, WE WILL RENDER ONE DECISION.

THE PRIOR DECISION PRIMARILY DEALT WITH WHETHER THE SECOND LOW BIDDER, CINCINNATI, HAD VIOLATED THE SOLICITATION'S LEVEL OPTION PRICING PROVISION; IT ALSO DISMISSED E-SYSTEMS' PROTEST THAT SENTINEL (THE THIRD LOW BIDDER AND A SMALL BUSINESS) COULD NOT MEET THE DEFINITIVE RESPONSIBILITY CRITERIA OF THE SOLICITATION. THAT PROTEST WAS DISMISSED BECAUSE THE MATTER HAD BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC) AND THE SBA HAD INFORMALLY ADVISED US THAT IT HAD CONSIDERED THE SOLICITATION'S DEFINITIVE RESPONSIBILITY CRITERIA AND THAT A COC WOULD BE RECOMMENDED.

BOTH THE E-SYSTEMS' REQUEST FOR RECONSIDERATION AND PROTEST ARE "BASED ON KNOWLEDGE AND BELIEF" THAT SBA HEADQUARTERS DID NOT CONSIDER CERTAIN VITAL INFORMATION REGARDING SENTINEL'S ABILITY TO MEET THE DEFINITIVE RESPONSIBILITY CRITERIA. SINCE BY LAW SBA CONCLUSIVELY DETERMINES A SMALL BUSINESS FIRM'S RESPONSIBILITY BY ISSUING OR REFUSING TO ISSUE A COC, 15 U.S.C. 637(B)(7)(A) (SUPP. I 1977), WE ORDINARILY WILL NOT QUESTION SBA'S ISSUANCE OF A COC UNLESS THE PROTESTER MAKES A SHOWING OF EITHER FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS OR THAT SBA DID NOT CONSIDER CERTAIN VITAL INFORMATION BEARING ON THE SMALL BUSINESS BIDDER'S COMPLIANCE WITH THE DEFINITIVE CRITERIA. J. BARANELLO AND SONS, 58 COMP.GEN. 509(1979), 79-1 CPD 322; UNIFLITE, INC., B-197365, JANUARY 23, 1980, 80-1 CPD 67. THE "VITAL INFORMATION" REFERRED TO IN BARANELLO ESSENTIALLY CONCERNS SBA'S AWARENESS OF THE DEFINITIVE CRITERIA IMPOSED BY THE PROCURING ACTIVITY, AND, WHERE SBA CHOOSES TO DETERMINE A BIDDER'S ABILITY TO COMPLY WITH THE CRITERIA, INFORMATION DIRECTLY BEARING ON THAT CAPABILITY. SEE UNIFLITE, SUPRA. WHERE SBA DECIDES THAT COMPLIANCE WITH THE DEFINITIVE CRITERIA IS NOT NECESSARY FOR ISSUANCE OF A COC IN A PARTICULAR CASE (WE HAVE RECOGNIZED THAT THERE IS "NO LIMITATION ON THE SBA'S AUTHORITY WHICH WOULD BIND THAT AGENCY TO THE ACTUAL REQUIREMENTS OF" DEFINITIVE RESPONSIBILITY CRITERIA CONTAINED IN A SOLICITATION. BARANELLO, SUPRA; BAXTER & SONS ELEVATOR CO., INC., 60 COMP.GEN. 97(1980), 80-2 CPD 414), THE "VITAL INFORMATION" TEST IS MET SO LONG AS SBA WAS AWARE OF THE CRITERIA.

IN THIS CASE WE UNDERSTAND FROM SBA THAT IT WAS AWARE OF THE INVITATION'S RESPONSIBILITY CRITERIA AND THAT IT ULTIMATELY DETERMINED THAT SENTINEL COULD PERFORM THE CONTRACT WHETHER OR NOT IT ACTUALLY MET THE CRITERIA. THUS, THE "VITAL INFORMATION" ABOUT WHICH THE PROTESTER IS CONCERNED IS NOT RELEVANT HERE, ALTHOUGH WE FURTHER UNDERSTAND THAT SBA HEADQUARTERS, WHEN CONSIDERING THE MATTER, DID HAVE BEFORE IT THE INFORMATION TO WHICH E -SYSTEMS REFERS.

WE AFFIRM OUR PRIOR DECISION AND DISMISS E-SYSTEMS' PROTEST.