B-213876, FEB 10, 1984

B-213876, FEB 10, 1984

DIGEST: WHERE AGENCY DETERMINES THAT PROTEST HAS MERIT AND TAKES APPROPRIATE REMEDIAL ACTION, FURTHER DEVELOPMENT AND CONSIDERATION OF PROTEST BY GAO WOULD SERVE NO USEFUL PURPOSE.

SOUTHWEST BUSINESS PUBLICATIONS COMPANY:

SOUTHWEST BUSINESS PUBLICATIONS COMPANY PROTESTS THE AWARD OF A CONTRACT TO F.W. FAXON, INC. UNDER REQUEST FOR PROPOSALS NO. 4015 SEC ISSUED BY THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA) FOR SUBSCRIPTION SERVICES. WE DISMISS THE PROTEST.

THE SOLICITATION WAS IDENTIFIED AS A TOTAL SMALL BUSINESS SET-ASIDE AND DEFINED THE SMALL BUSINESS SIZE STANDARD AS ONE OF AVERAGE ANNUAL RECEIPTS NOT IN EXCESS OF $2,000,000 FOR THE 3 PRECEDING YEARS. FAXON SUBMITTED ITS OFFER COMPLETE WITH CERTIFICATIONS THAT IT WAS A SMALL BUSINESS. THE CONTRACTING OFFICER DETERMINED THAT OF THE FOUR PROPOSALS RECEIVED, ONLY FAXON WAS IN THE COMPETITIVE RANGE AND, ON OCTOBER 28, 1983, AWARDED FAXON A CONTRACT WHICH INCORPORATED ITS EARLIER CERTIFICATIONS.

SOUTHWEST PROTESTED THAT FAXON HAD NOT ACTED IN GOOD FAITH WHEN IT CERTIFIED ITS SMALL BUSINESS STATUS, POINTING OUT THAT IN AN UNRELATED BUT CONTEMPORANEOUS PROCUREMENT, FAXON'S SIZE STATUS HAD BEEN PROTESTED TO THE SMALL BUSINESS ADMINISTRATION AND THE SBA HAD FOUND, ON THE BASIS OF THE SAME SIZE STANDARD, THAT IT WAS OTHER THAN A SMALL BUSINESS FIRM. SOUTHWEST FURTHER ARGUED THAT A RECENT DUNN AND BRADSTREET REPORT ON FAXON SHOWED THAT THE FIRM'S RECEIPTS HAD BEEN WELL IN EXCESS OF $2,000,000 DURING EACH OF THE PAST 3 YEARS.

AS A RESULT OF THESE ALLEGATIONS, THE CONTRACTING OFFICER ASKED FAXON TO PROVIDE EVIDENCE THAT ITS SMALL BUSINESS CERTIFICATION HAD BEEN MADE IN GOOD FAITH. AFTER REVIEWING THE MATERIAL SUBMITTED BY FAXON, THE CONTRACTING OFFICER DETERMINED THAT FAXON'S SELF CERTIFICATION WAS NOT MADE IN GOOD FAITH AND TERMINATED FOR CONVENIENCE THE PORTION OF THE CONTRACT WORK WHICH HAD NOT BEEN COMPLETED BY THAT DATE. WHEN ADVISED OF THE CORRECTIVE ACTION TAKEN BY NOAA, SOUTHWEST REQUESTED THAT WE NEVERTHELESS CONSIDER THE MATTER "TO PUT FAXON ON NOTICE THAT ITS FAILURE TO INVESTIGATE BEFORE CERTIFYING WILL NOT BE TOLERATED."

IT HAS LONG BEEN THE POLICY OF OUR OFFICE NOT TO CONSIDER ACADEMIC PROTESTS. PHIL CON CORP., B-207082, JULY 23, 1982, 82-2 CPD 70; DR. HELMUT WEISS, B-185435, FEBRUARY 12, 1976, 76-1 CPD 97. AS PREVIOUSLY INDICATED, THE CONTRACTING OFFICER ALREADY HAS TAKEN APPROPRIATE REMEDIAL ACTION HERE BY TERMINATING FAXON'S CONTRACT. IN LIGHT OF THIS TERMINATION ACTION, WE BELIEVE THAT OUR FURTHER DEVELOPMENT AND CONSIDERATION OF THE ISSUE WOULD SERVE NO USEFUL PURPOSE. EDUCATIONAL DEVELOPMENT CORPORATION; KEE SERVICE CO., B-209395; B-209395.2, FEBRUARY 28, 1983, 83-1 CPD 202. ACCORDINGLY, WE DECLINE TO CONSIDER THE PROTEST FURTHER.