B-217014, NOV 26, 1984, 84-2 CPD 567

B-217014: Nov 26, 1984

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SMALL BUSINESS ADMINISTRATION HAS AUTHORITY TO ISSUE OR DENY A CERTIFICATE OF COMPETENCY AND GAO WILL NOT REVIEW AN SBA DETERMINATION ABSENT PRIMA FACIE SHOWING OF FRAUD OR WILLFUL DISREGARD OF FACTS. THE SOLICITATION IS FOR LODGING. QUALITY INN COMPLAINS THAT ALTHOUGH IT WAS THE LOWEST BIDDER. QUALITY INN CONTENDS THAT IT WAS PREJUDICED BY THE CONTRACTING OFFICER'S EXPRESSION OF NEGATIVE VIEWS REGARDING QUALITY INN TO THE SBA AND. QUALITY INN ASKS US TO DETERMINE IF THERE WAS BID COLLUSION BECAUSE THE CONTRACTING OFFICER REQUIRED AN SBA EVALUATION FOR A COC ONLY AFTER THE BIDS WERE OPEN. AT WHICH TIME IT WAS OBVIOUS THAT QUALITY INN WAS THE LOW BIDDER. OUR OFFICE GENERALLY WILL NOT REVIEW SUCH SBA DETERMINATIONS UNLESS THERE IS A PRIMA FACIE SHOWING OF FRAUD OR SUCH WILLFUL DISREGARD OF FACTS AS TO IMPLY BAD FAITH.

B-217014, NOV 26, 1984, 84-2 CPD 567

CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - CERTIFICATE OF COMPETENCY DIGEST: UNDER 15 U.S.C. SEC. 637(B)(7), SMALL BUSINESS ADMINISTRATION HAS AUTHORITY TO ISSUE OR DENY A CERTIFICATE OF COMPETENCY AND GAO WILL NOT REVIEW AN SBA DETERMINATION ABSENT PRIMA FACIE SHOWING OF FRAUD OR WILLFUL DISREGARD OF FACTS.

QUALITY INN:

QUALITY INN PROTESTS THE AWARD OF A CONTRACT TO MARINER HOTEL UNDER SOLICITATION NO. DAKF15-84-B-0007, ISSUED BY THE DEPARTMENT OF THE ARMY. THE SOLICITATION IS FOR LODGING, MEALS AND TRANSPORTATION FOR MALE AND FEMALE ARMED FORCES APPLICANTS.

QUALITY INN COMPLAINS THAT ALTHOUGH IT WAS THE LOWEST BIDDER, THE ARMY HAS AWARDED THE CONTRACT TO MARINER HOTEL BECAUSE THE SMALL BUSINESS ADMINISTRATION (SBA) REFUSED TO ISSUE QUALITY INN A CERTIFICATE OF COMPETENCY (COC). QUALITY INN CONTENDS THAT IT WAS PREJUDICED BY THE CONTRACTING OFFICER'S EXPRESSION OF NEGATIVE VIEWS REGARDING QUALITY INN TO THE SBA AND, THEREFORE, CAUSED SBA TO DENY QUALITY INN A COC. ADDITION, QUALITY INN ASKS US TO DETERMINE IF THERE WAS BID COLLUSION BECAUSE THE CONTRACTING OFFICER REQUIRED AN SBA EVALUATION FOR A COC ONLY AFTER THE BIDS WERE OPEN, AT WHICH TIME IT WAS OBVIOUS THAT QUALITY INN WAS THE LOW BIDDER.

WE DISMISS THE PROTEST. SBA HAS CONCLUSIVE AUTHORITY BY LAW TO MAKE FINAL DETERMINATION OF RESPONSIBILITY FOR SMALL BUSINESS CONCERNS UNDER A PARTICULAR PROCUREMENT PURSUANT TO ITS COC PROCEDURES. 15 U.S.C. SEC. 637(B)(7) (1982). THEREFORE, OUR OFFICE GENERALLY WILL NOT REVIEW SUCH SBA DETERMINATIONS UNLESS THERE IS A PRIMA FACIE SHOWING OF FRAUD OR SUCH WILLFUL DISREGARD OF FACTS AS TO IMPLY BAD FAITH. J. BARANELLO AND SONS, 58 COMP.GEN. 509 (1979), 79-1 CPD PARA. 322; CALCAGNI MACHINE WORKS, INC., B-203598, JUNE 16, 1981, 81-1 CPD PARA. 536; HORSBURGH & SCOTT COMPANY, APPLETON MACHINE COMPANY, B-213800; B-213800.2, DEC. 21, 1983, 84-1 CPD PARA. 12. NO SUCH SHOWING HAS BEEN MADE HERE. THE MERE STATEMENT THAT THE CONTRACTING OFFICER MAY HAVE COMMUNICATED WITH SBA EXPRESSING NEGATIVE VIEWS ABOUT QUALITY INN DOES NOT ESTABLISH BAD FAITH. CAL PACIFIC FABRICATING INC, B-214946, MAY 22, 1984, 84-1 CPD PARA. 552. IN ADDITION, IT WAS PROPER FOR THE CONTRACTING OFFICER TO AWAIT REQUESTING A COC ON QUALITY INN UNTIL IT WAS CLEAR THAT QUALITY INN WAS THE LOW BIDDER SINCE THERE IS NO NEED TO REQUEST A COC FROM A BIDDER WHO WOULD NOT BE IN LINE FOR AWARD.

THE PROTEST IS DISMISSED.