B-218893, B-218893.2, JUN 3, 1985, 85-1 CPD 634

B-218893,B-218893.2: Jun 3, 1985

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CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - CERTIFICATE OF COMPETENCY - PERIOD FOR ISSUANCE DIGEST: GAO WILL NOT CONSIDER A PROTEST CONCERNING AN ALLEGEDLY IMPROPER DENIAL OF A REQUEST FOR AN EXTENSION OF TIME FOR PROCESSING A CERTIFICATE OF COMPETENCY APPLICATION IN THE ABSENCE OF A SHOWING THAT THE DECISION TO DENY THE REQUEST MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH. LASANTA WAS THE APPARENT LOW BIDDER UNDER THE TWO SOLICITATIONS FOR WOMEN'S SHIRTS. THE AGENCY DETERMINED THAT THE FIRM WAS NOT RESPONSIBLE AND THEREFORE REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF COCS. THE REGULATIONS PROVIDE THAT WHEN A CONTRACTING OFFICER DETERMINES THAT A SMALL BUSINESS CONCERN IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR.

B-218893, B-218893.2, JUN 3, 1985, 85-1 CPD 634

CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - CERTIFICATE OF COMPETENCY - PERIOD FOR ISSUANCE DIGEST: GAO WILL NOT CONSIDER A PROTEST CONCERNING AN ALLEGEDLY IMPROPER DENIAL OF A REQUEST FOR AN EXTENSION OF TIME FOR PROCESSING A CERTIFICATE OF COMPETENCY APPLICATION IN THE ABSENCE OF A SHOWING THAT THE DECISION TO DENY THE REQUEST MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH.

LASANTA SPORTSWEAR, INC.:

LASANTA SPORTSWEAR, INC. PROTESTS THE DENIAL BY THE DEFENSE LOGISTICS AGENCY OF LASANTA'S REQUEST FOR AN EXTENSION OF TIME FOR OBTAINING A CERTIFICATE OF COMPETENCY (COC) IN CONNECTION WITH INVITATION FOR BIDS (IFB) NOS. DLA100-85-B-0216 AND DLA100-85-B-0283, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER IN PHILADELPHIA. WE DISMISS THE PROTEST.

LASANTA WAS THE APPARENT LOW BIDDER UNDER THE TWO SOLICITATIONS FOR WOMEN'S SHIRTS, BUT THE AGENCY DETERMINED THAT THE FIRM WAS NOT RESPONSIBLE AND THEREFORE REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF COCS. THE SBA WROTE LASANTA AND REQUESTED THE FIRM TO FURNISH INFORMATION TO THAT AGENCY IN CONNECTION WITH THE FIRM'S COC APPLICATIONS BY MARCH 27, 1985. BY LETTER DATED MARCH 25, LASANTA WROTE THE CONTRACTING OFFICER AND REQUESTED A 30-DAY EXTENSION IN CONNECTION WITH ITS COC APPLICATIONS TO ENABLE THE FIRM TO OBTAIN FINANCING COMMITMENTS FROM ITS BANK. THE CONTRACTING OFFICER DENIED LASANTA'S REQUEST AND THE SBA DECLINED TO ISSUE COCS, PRINCIPALLY BECAUSE OF THE LACK OF FINANCING COMMITMENTS. LASANTA THEN PROTESTED THE DENIAL OF ITS EXTENSION REQUEST TO THIS OFFICE.

THE REGULATIONS PROVIDE THAT WHEN A CONTRACTING OFFICER DETERMINES THAT A SMALL BUSINESS CONCERN IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR, THE CONTRACTING OFFICER MUST WITHHOLD AWARD AND REFER THE MATTER TO THE SBA, THE AGENCY AUTHORIZED BY STATUTE, 15 U.S.C. SEC. 637(B)(7) (1982), TO CERTIFY CONCLUSIVELY ALL ELEMENTS OF A SMALL BUSINESS CONCERN'S RESPONSIBILITY. FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 19.602-1(A) (1984). THE REGULATIONS PROVIDE FURTHER THAT THE SBA WILL TAKE SPECIFIC ACTIONS IN RESPONSE TO A COC REFERRAL WITHIN 15 BUSINESS DAYS, UNLESS THE SBA AND THE CONTRACTING AGENCY AGREE TO A LONGER PERIOD. FAR, SEC. 19.602-2(A). IF THE SBA HAS NOT ISSUED A COC WITHIN THE 15-DAY (OR LONGER, IF AGREED TO) PERIOD, THE CONTRACTING OFFICER IS FREE TO AWARD THE CONTRACT TO ANOTHER FIRM. FAR, SEC. 19.602-4(C). THUS, BY REQUIRING THAT THE AWARD BE WITHHELD AND PROVIDING FOR AN EXPEDITIOUS COC DETERMINATION, THE REGULATIONS SEEK TO BALANCE THE INTEREST OF THE SMALL BUSINESS CONCERN IN OBTAINING AN INDEPENDENT REVIEW OF ITS ABILITY TO PERFORM THE CONTRACT WITH THE INTEREST OF THE GOVERNMENT IN PROCEEDING WITH THE ACQUISITION.

IN CASES SIMILAR TO THIS, WE HAVE SAID THAT THE GRANTING OF AN EXTENSION FOR FILING OR PROCESSING A COC APPLICATION IS A MATTER WITHIN THE CONTRACTING AGENCY'S DISCRETION, AND THAT THE BIDDER'S INTERESTS ARE NOT CONTROLLING. SEE, E.G., GREENBRIER INDUSTRIES, INC., B-191380, APR. 24, 1978, 78-1 CPD PARA. 315; SOLAR LABORATORIES, INC., B-180920, JUNE 26, 1974, 74-1 CPD PARA. 347. ALTHOUGH WE DID NOT ARTICULATE A STANDARD IN THOSE CASES FOR OUR REVIEW OF A CONTENTION THAT AN AGENCY IMPROPERLY DENIED A REQUEST FOR AN EXTENSION OF THE TIME FOR PROCESSING A COC APPLICATION, SINCE THE MATTER IS A DISCRETIONARY ONE, WE WILL NOT REVIEW A PROTEST SUCH AS THIS UNLESS THE PROTESTER SHOWS THAT THE CONTRACTING OFFICER'S DECISION MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH. SINCE THE PROTESTER HAS MADE NO SUCH SHOWING HERE, WE DISMISS THE PROTEST.