B-203603, JUN 30, 1981

B-203603: Jun 30, 1981

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DIGEST: GAO WILL NOT REVIEW SMALL BUSINESS ADMINISTRATION (SBA) REFUSAL TO ISSUE CERTIFICATE OF COMPETENCY ABSENT SHOWING OF FRAUD OR BAD FAITH. BURGESS WAS THE LOW BIDDER UNDER THE SOLICITATION. THAT DETERMINATION IS CONCLUSIVE ON GAO ALSO. GAO'S ROLE IN THESE CASES IS THEREFORE LIMITED. WHERE NO QUESTION OF FRAUD OR BAD FAITH IS INVOLVED. HERE THERE IS NO SHOWING OF FRAUD AND NO EVIDENCE OF BAD FAITH. THE DOCUMENTS FURNISHED BY BURGESS INDICATE THAT WITHIN THE 15 WORKING DAYS AN AGENCY NEED WAIT FROM THE DATE SBA IS REQUESTED TO CONSIDER THE ISSUANCE OF A COC BEFORE AN AWARD CAN BE MADE. THE COC WAS DENIED. THE PROTEST IS DISMISSED.

B-203603, JUN 30, 1981

DIGEST: GAO WILL NOT REVIEW SMALL BUSINESS ADMINISTRATION (SBA) REFUSAL TO ISSUE CERTIFICATE OF COMPETENCY ABSENT SHOWING OF FRAUD OR BAD FAITH. BAD FAITH NOT SHOWN WHERE SBA ACTS ON ONLY INFORMATION AVAILABLE TO IT WITHIN 15 WORKING DAY PERIOD CONTRACTING AGENCY MUST WAIT BEFORE AWARD CAN BE MADE WHERE AGENCY INDICATES IT CANNOT WAIT FOR LONGER PERIOD.

BURGESS, INC.:

BURGESS, INC. (BURGESS) PROTESTS THE AWARD OF A CONTRACT UNDER SOLICITATION NO. F04606-81-B-0043 ISSUED BY MCCLELLAN AIR FORCE BASE. BURGESS WAS THE LOW BIDDER UNDER THE SOLICITATION, BUT DID NOT RECEIVE THE CONTRACT BECAUSE THE CONTRACTING OFFICER FOUND BURGESS TO BE NONRESPONSIBLE AND THE SMALL BUSINESS ADMINISTRATION (SBA) DECLINED TO ISSUE THE FIRM A CERTIFICATE OF COMPETENCY (COC).

THE SBA HAS CONCLUSIVE AUTHORITY TO DETERMINE A SMALL BUSINESS BIDDER'S RESPONSIBILITY BY ISSUING OR DECLINING TO ISSUE A COC, AND THAT DETERMINATION IS CONCLUSIVE ON GAO ALSO. SEE J. BARANELLO & SON, 58 COMP.GEN. 509 (1979), 79-1 CPD 322. GAO'S ROLE IN THESE CASES IS THEREFORE LIMITED. WHERE NO QUESTION OF FRAUD OR BAD FAITH IS INVOLVED, GAO CANNOT REQUIRE OR RECOMMEND EITHER THAT SBA ISSUE A COC OR THAT SBA REOPEN A CASE WHERE A COC HAS BEEN DENIED. SEE DAN'S JANITORIAL SERVICE & SUPPLY, B-200360, JANUARY 22, 1981, 81-1 CPD 36. HERE THERE IS NO SHOWING OF FRAUD AND NO EVIDENCE OF BAD FAITH.

THE DOCUMENTS FURNISHED BY BURGESS INDICATE THAT WITHIN THE 15 WORKING DAYS AN AGENCY NEED WAIT FROM THE DATE SBA IS REQUESTED TO CONSIDER THE ISSUANCE OF A COC BEFORE AN AWARD CAN BE MADE, DEFENSE ACQUISITION REGULATION SEC. 1-705.4(C) (1976 ED.), SBA HAD BEFORE IT ONLY OUTDATED FINANCIAL INFORMATION WHICH BURGESS HAD SUBMITTED. ALTHOUGH BURGESS LATER SENT UPDATED INFORMATION, THE COC WAS DENIED, ACCORDING TO BURGESS, ON THE BASIS OF THE OUTDATED INFORMATION AS THE CONTRACTING AGENCY HAD INDICATED IT COULD NOT WAIT BEYOND THE 15 DAY PERIOD TO MAKE AN AWARD AND THE SBA THEREFORE COULD NOT WAIT FOR THE ADDITIONAL INFORMATION. WE DO NOT FIND ANY IMPLICATION OF BAD FAITH IN THESE CIRCUMSTANCES.

THE PROTEST IS DISMISSED.