B-213129, DEC 16, 1983

B-213129: Dec 16, 1983

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DIGEST: GAO WILL NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT EITHER A SHOWING OF POSSIBLE FRAUD ON THE PART OF THE CONTRACTING OFFICIALS. DOES NOT HAVE A LOCAL TELEPHONE. AMERICAN'S CONTENTIONS CONSTITUTE A PROTEST OF THE NAVY'S AFFIRMATIVE DETERMINATION OF ABC'S RESPONSIBILITY WHICH IS NECESSARILY INVOLVED IN ANY DECISION TO AWARD TO ABC. BECAUSE THEY ARE ESSENTIALLY MATTERS OF BUSINESS JUDGMENT. WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS THERE IS A SHOWING OF POSSIBLE FRAUD ON THE PART OF THE PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. WE ARE ADVISED THAT ABC IS A SMALL BUSINESS CONCERN.

B-213129, DEC 16, 1983

DIGEST: GAO WILL NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT EITHER A SHOWING OF POSSIBLE FRAUD ON THE PART OF THE CONTRACTING OFFICIALS, OR MISAPPLICATION OF DEFINITIVE RESPONSIBILITY CRITERIA.

AMERICAN ELEVATOR COMPANY:

AMERICAN ELEVATOR COMPANY HAS FILED A PREAWARD BID PROTEST OF ANY AWARD OF A CONTRACT TO ABC ELEVATOR COMPANY, THE LOW BIDDER FOR ELEVATOR MAINTENANCE SERVICES AT OAKLAND NAVAL HOSPITAL UNDER INVITATION FOR BIDS NO. N62474-82-B-6521. AMERICAN QUESTIONS WHETHER ABC SATISFIES THE REQUIREMENTS OF THE SOLICITATION RELATING TO COMPETENCY.

WE DISMISS THE PROTEST.

AMERICAN'S CONTENTIONS THAT ABC DOES NOT EMPLOY CERTIFIED MECHANICS, DOES NOT HAVE A LOCAL TELEPHONE, AND DOES NOT OTHERWISE SATISFY THE COMPETENCY REQUIREMENTS OF THE IFB CONCERN MATTERS OF RESPONSIBILITY. WEAVER SHIPYARD & DRYDOCK, INC., B-210652, FEBRUARY 9, 1983, 83-1 CPD 146. THUS, AMERICAN'S CONTENTIONS CONSTITUTE A PROTEST OF THE NAVY'S AFFIRMATIVE DETERMINATION OF ABC'S RESPONSIBILITY WHICH IS NECESSARILY INVOLVED IN ANY DECISION TO AWARD TO ABC. DIXIE BAG CORPORATION, B-210898.2, JULY 15, 1983, 83-2 CPD 97. BECAUSE THEY ARE ESSENTIALLY MATTERS OF BUSINESS JUDGMENT, WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS THERE IS A SHOWING OF POSSIBLE FRAUD ON THE PART OF THE PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. HARNISCHFEGER CORPORATION, B-211313, JULY 8, 1983, 83-2 CPD 68. NEITHER EXCEPTION APPLIES HERE.

FINALLY, WE ARE ADVISED THAT ABC IS A SMALL BUSINESS CONCERN. ACCORDINGLY, IF THE CONTRACTING OFFICER FINDS ABC TO BE NONRESPONSIBLE, THE LAW REQUIRES THAT THE MATTER BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) UNDER THAT AGENCY'S CERTIFICATE OF COMPETENCY PROCEDURES. THE SBA HAS CONCLUSIVE AUTHORITY TO DETERMINE ALL MATTERS OF A SMALL BUSINESS FIRM'S RESPONSIBILITY IF IT HAS BEEN FOUND TO BE NONRESPONSIBLE BY THE CONTRACTING OFFICER. DIXIE BAG CORPORATION, SUPRA.