B-220277, SEP 20, 1985, 85-2 CPD 317
Highlights
DE FACTO DEBARMENT DIGEST: THE FACT THAT CONTRACTING AGENCY HAS MORE THAN ONCE RELIED ON NEGATIVE PREAWARD SURVEY BY DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA (DCASMA) IN MAKING A NEGATIVE DETERMINATION OF PROTESTER'S RESPONSIBILITY DOES NOT CONSTITUTE A DE FACTO DEBARMENT BY EITHER THE CONTRACTING AGENCY OR DCASMA BECAUSE SUCH DETERMINATIONS ARE SUBJECT TO THE SMALL BUSINESS ADMINISTRATION'S INDEPENDENT AND CONCLUSIVE AUTHORITY TO DETERMINE SMALL BUSINESS RESPONSIBILITY. THE AIR FORCE DETERMINED THAT SERMOR WAS NONRESPONSIBLE. SERMOR CONTENDS THAT IT IS THE VICTIM OF DE FACTO DEBARMENT BY DCASMA. ALTHOUGH WE ARE NOW RECONSIDERING THAT DECISION. WE FIND THAT THE SAME REASONING IS APPLICABLE TO DCASMA ACTIONS WHICH ARE ALSO SUBJECT TO SBA REVIEW.
B-220277, SEP 20, 1985, 85-2 CPD 317
BIDDERS - DEBARMENT - DE FACTO - NONRESPONSIBILITY DETERMINATIONS V. DE FACTO DEBARMENT DIGEST: THE FACT THAT CONTRACTING AGENCY HAS MORE THAN ONCE RELIED ON NEGATIVE PREAWARD SURVEY BY DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA (DCASMA) IN MAKING A NEGATIVE DETERMINATION OF PROTESTER'S RESPONSIBILITY DOES NOT CONSTITUTE A DE FACTO DEBARMENT BY EITHER THE CONTRACTING AGENCY OR DCASMA BECAUSE SUCH DETERMINATIONS ARE SUBJECT TO THE SMALL BUSINESS ADMINISTRATION'S INDEPENDENT AND CONCLUSIVE AUTHORITY TO DETERMINE SMALL BUSINESS RESPONSIBILITY.
SERMOR INC.:
SERMOR INC., A SMALL BUSINESS, PROTESTS AN AWARD TO ANY OTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) NO. F41608-85-R-0606 ISSUED BY THE SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS (AIR FORCE).
ON THE BASIS OF A NEGATIVE PREAWARD SURVEY BY DEFENSE CONTRACT ADMINISTRATION SERVICES MANAGEMENT AREA/ORLANDO (DCASMA), THE AIR FORCE DETERMINED THAT SERMOR WAS NONRESPONSIBLE. THE AIR FORCE ADVISED THAT THIS NEGATIVE DETERMINATION OF RESPONSIBILITY HAS BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION UNDER ITS CERTIFICATE OF COMPETENCY PROGRAM.
WE DISMISS THE PROTEST.
SERMOR OBJECTS TO THE AIR FORCE'S RELIANCE ON DCASMA'S PREAWARD SURVEY AS THE BASIS OF ITS NONRESPONSIBILITY DETERMINATION AND THE AIR FORCE'S ALLEGED REFUSAL TO CONSIDER INFORMATION FURNISHED BY SERMOR TO THE EFFECT THAT SERMOR HAS 80 PERCENT OF THE PARTS AND DOLLAR VALUE OF THE CONTRACT IN STOCK. MOREOVER, BECAUSE THE AIR FORCE HAS PREVIOUSLY RELIED ON SIMILAR DCASMA SURVEYS AS THE BASIS FOR NEGATIVE DETERMINATIONS OF SERMOR'S RESPONSIBILITY, SERMOR CONTENDS THAT IT IS THE VICTIM OF DE FACTO DEBARMENT BY DCASMA.
WE CONSIDERED AND REJECTED SIMILAR ARGUMENTS IN OUR DECISION IN SERMOR INC., B-219173, JULY 17, 1985, 85-2 CPD PARA. 56. ALTHOUGH WE ARE NOW RECONSIDERING THAT DECISION, THE RECONSIDERATION DOES NOT PERTAIN TO THE ISSUE OF DE FACTO DEBARMENT. IN THE CITED DECISION, WE NOTED THE CONCLUSIVE NATURE OF SBA'S AUTHORITY TO DETERMINE SMALL BUSINESS RESPONSIBILITY QUESTIONS AND OUR GENERAL POLICY OF NOT REVIEWING NEGATIVE RESPONSIBILITY DETERMINATIONS INVOLVING A SMALL BUSINESS. WE HELD THAT SBA'S INDEPENDENT AND CONCLUSIVE DETERMINATION OF SERMOR'S RESPONSIBILITY PRECLUDED THE POSSIBILITY OF CONTRACTING AGENCY ACTION CONSTITUTING AN IMPROPER DE FACTO DEBARMENT. WE FIND THAT THE SAME REASONING IS APPLICABLE TO DCASMA ACTIONS WHICH ARE ALSO SUBJECT TO SBA REVIEW. THEREFORE ARE OF THE VIEW THAT THE AIR FORCE'S REPEATED RELIANCE ON DCASMA FINDINGS AS A BASIS FOR NEGATIVE DETERMINATIONS OF SERMOR'S RESPONSIBILITY DOES NOT CONSTITUTE A DE FACTO DEBARMENT OF SERMOR BY EITHER THE AIR FORCE OR DCASMA.