B-219132.2, OCT 23, 1985, 85-2 CPD 444

B-219132.2: Oct 23, 1985

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BIDDERS - QUALIFICATIONS - PREAWARD SURVEYS - UTILIZATION - ADMINISTRATIVE DETERMINATION PREAWARD SURVEYS ARE CONDUCTED AT THE DISCRETION OF THE CONTRACTING OFFICER AND ARE NOT REQUIRED FOR EACH PROCUREMENT. (SERMOR) REQUEST RECONSIDERATION OF ITS PROTEST THAT WAS DISMISSED AS UNTIMELY FILED. OUR OFFICE HAD ASSUMED THAT SERMOR'S PROTEST LETTER WAS UNTIMELY BECAUSE IT WAS FILED MORE THAN 10 DAYS AFTER PROTESTER RECEIVED NOTIFICATION OF ADVERSE AGENCY ACTION AN MAY 28. SERMOR HAD SENT A TELEGRAM THAT WAS RECEIVED BY THE GENERAL ACCOUNTING OFFICE ON JUNE 7. WAS MISLAID IN THE MAIL ROOM. THE PROTEST THEREFORE WAS TIMELY AND WILL BE CONSIDERED. THE CONTRACTING OFFICER (CO) DETERMINED THAT SERMOR WAS NONRESPONSIBLE ON THE BASIS OF AN EARLIER NEGATIVE PREAWARD SURVEY BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA/ORLANDO (DCASMA) AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CONCLUSIVE DETERMINATION OF SERMOR'S RESPONSIBILITY UNDER SBA'S CERTIFICATE OF COMPETENCY (COC) PROCEDURES.

B-219132.2, OCT 23, 1985, 85-2 CPD 444

BIDDERS - DEBARMENT - DE FACTO - NONRESPONSIBILITY DETERMINATION V. DE FACTO DEBARMENT DIGEST: THE SMALL BUSINESS ADMINISTRATION'S INDEPENDENT AND CONCLUSIVE AUTHORITY TO DETERMINE PROTESTER'S RESPONSIBILITY PRECLUDES THE POSSIBILITY OF THE CONTRACTING AGENCY'S FIVE NONRESPONSIBILITY DETERMINATIONS, BASED ON SAME DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA'S NEGATIVE PREAWARD SURVEY, FROM CONSTITUTING A DE FACTO DEBARMENT OF PROTESTER. BIDDERS - QUALIFICATIONS - PREAWARD SURVEYS - UTILIZATION - ADMINISTRATIVE DETERMINATION PREAWARD SURVEYS ARE CONDUCTED AT THE DISCRETION OF THE CONTRACTING OFFICER AND ARE NOT REQUIRED FOR EACH PROCUREMENT.

SERMOR INC.-- RECONSIDERATION:

SERMOR INC. (SERMOR) REQUEST RECONSIDERATION OF ITS PROTEST THAT WAS DISMISSED AS UNTIMELY FILED. SERMOR INC., B-219132.1, JUNE 28, 1985. OUR OFFICE HAD ASSUMED THAT SERMOR'S PROTEST LETTER WAS UNTIMELY BECAUSE IT WAS FILED MORE THAN 10 DAYS AFTER PROTESTER RECEIVED NOTIFICATION OF ADVERSE AGENCY ACTION AN MAY 28, 1985. 4 C.F.R. SEC. 21.2(A)(2) (1985). IN ADDITION TO THE LETTER, HOWEVER, SERMOR HAD SENT A TELEGRAM THAT WAS RECEIVED BY THE GENERAL ACCOUNTING OFFICE ON JUNE 7, 1985, WITHIN THE 10- DAY FILING PERIOD, AND WAS MISLAID IN THE MAIL ROOM. THE PROTEST THEREFORE WAS TIMELY AND WILL BE CONSIDERED.

SERMOR, THE LOW BIDDER, PROTESTS THE AWARD OF A CONTRACT TO TRIPLE E MANUFACTURING CO. (TRIPLE E) UNDER INVITATION FOR BID (IFB) NO. DAAA09 84- 0985, A TOTAL SMALL BUSINESS SET-ASIDE, ISSUED BY THE UNITED STATES ARMY ARMAMENT MUNITION & CHEMICAL COMMAND, ROCK ISLAND, ILLINOIS (ARMY) FOR BRAKE ASSEMBLIES. THE PROTESTER PRIMARILY ARGUES THAT THE ARMY RELIED ON A SINGLE, ALLEGEDLY DEFECTIVE, PREAWARD SURVEY TO FIND SERMOR NONRESPONSIBLE IN THIS AND FOUR OTHER PROCUREMENTS, AND THAT SUCH ACTION CONSTITUTED A DE FACTO DEBARMENT OF SERMOR.

THE CONTRACTING OFFICER (CO) DETERMINED THAT SERMOR WAS NONRESPONSIBLE ON THE BASIS OF AN EARLIER NEGATIVE PREAWARD SURVEY BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA/ORLANDO (DCASMA) AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CONCLUSIVE DETERMINATION OF SERMOR'S RESPONSIBILITY UNDER SBA'S CERTIFICATE OF COMPETENCY (COC) PROCEDURES. AFTER SERMOR FAILED TO SUBMIT REQUIRED PAPERWORK FOR A COC, SBA AUTHORIZED THE CO TO AWARD THE CONTRACT TO THE NEXT LOW BIDDER, TRIPLE E.

THE PROTEST IS DENIED.

THE PROTESTER PREVIOUSLY HAS RAISED THE ISSUE OF DE FACTO DEBARMENT AND WE HAVE ALREADY CONSIDERED THIS ISSUE. SEE SERMOR INC., B-219173, JULY 17, 1985, 85-2 CPD PARA. 56; SERMOR INC., B-220277, SEPT. 20, 1985, 85-2 CPD PARA. ---. IN BOTH CASES, WE NOTED THAT THE SBA HAS CONCLUSIVE AUTHORITY TO CERTIFY ALL ELEMENTS OF A SMALL BUSINESS CONCERN'S RESPONSIBILITY. 15 U.S.C. SEC. 637(B)(7) (1982), FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 19.602-1(A) (1984). CONSEQUENTLY, WE WILL NOT UNDERTAKE AN INDEPENDENT REVIEW OF A CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION, BECAUSE SUCH A REVIEW WOULD AMOUNT TO A SUBSTITUTION OF OUR JUDGMENT OF THAT OF THE SBA. SINCE THE AGENCY'S NONRESPONSIBILITY DETERMINATION WAS SUBJECT TO SBA'S INDEPENDENT REVIEW, THAT PRECLUDED THE POSSIBILITY OF THE ARMY'S FIVE CONSECUTIVE NONRESPONSIBILITY DETERMINATIONS, BASED ON DCASMA'S NEGATIVE PREAWARD SURVEY, FROM CONSTITUTING A DE FACTO DEBARMENT OF SERMOR. SERMOR INC., B-220277, SUPRA.

SERMOR ALSO CONTENDS THAT THE ARMY IMPROPERLY DECLINED TO CONDUCT A NEW PREAWARD SURVEY FOR THIS PROCUREMENT AND FAILED TO ISSUE A WRITTEN NONRESPONSIBILITY DETERMINATION FOR THE CONTRACT FILE. CONTRARY TO PROTESTER'S CONTENTION, PREAWARD SURVEYS ARE NOT REQUIRED FOR EACH PROCUREMENT BY FAR, 48 C.F.R. SEC. 9.105-1(B)(4) (1984). THE QUESTION OF WHETHER TO CONDUCT A PREAWARD SURVEY IS WITHIN THE BROAD DISCRETION OF THE CO. SEE PAE GMBH, B-212403, ET AL., JULY 24, 1984, PARA. 94. IN THIS CASE, THE ARMY CO DETERMINED THAT THE INFORMATION IN THE DCASMA PREAWARD SURVEY WAS COMPLETE AND NO SURVEY WAS REQUIRED. ADDITIONALLY, CONTRARY TO SERMOR'S ALLEGATION, THE ARMY DID MAKE A WRITTEN NONRESPONSIBILITY DETERMINATION AND REFERRED IT TO THE SBA FOR CONSIDERATION.

THE PROTEST IS DENIED.