B-220961.2, DEC 18, 1985, 65 COMP.GEN. 132

B-220961.2: Dec 18, 1985

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GENERAL ACCOUNTING OFFICE (GAO) WILL DISMISS PROTESTS ALLEGING THAT THE CONTRACTING OFFICER FAILED TO FORWARD TO SBA FOR ITS COC DETERMINATION INFORMATION TENDING TO SHOW THAT A CONTRACTOR IS RESPONSIBLE WHERE THE CONTRACTOR HAD THE INFORMATION. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DISMISSAL OF PROTEST IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION DOES NOT ESTABLISH THAT THE DECISION WAS BASED ON ERROR OF LAW OR FACT. INFORMATION WHICH RSD SUPPLIED TO THE CONTRACTING OFFICER WHICH RSD BELIEVES SUPPORTS RSD'S POSITION THAT IT IS A RESPONSIBLE CONTRACTOR. WE REJECTED RSD'S ARGUMENT THAT THE CONTRACTING OFFICER WAS REQUIRED TO SUPPLY SBA WITH THE INFORMATION.

B-220961.2, DEC 18, 1985, 65 COMP.GEN. 132

CONTRACTS - SMALL BUSINESS CONCERN - AWARDS - RESPONSIBILITY DETERMINATION THE BIDDER, NOT THE CONTRACTING OFFICER, HAS THE BURDEN OF PROVING THE BIDDER'S COMPETENCY WHEN APPLYING TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY (COC). GENERAL ACCOUNTING OFFICE (GAO) WILL DISMISS PROTESTS ALLEGING THAT THE CONTRACTING OFFICER FAILED TO FORWARD TO SBA FOR ITS COC DETERMINATION INFORMATION TENDING TO SHOW THAT A CONTRACTOR IS RESPONSIBLE WHERE THE CONTRACTOR HAD THE INFORMATION, BUT DID NOT PROVIDE IT TO THAT SBA WHEN APPLYING FOR A COC. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DISMISSAL OF PROTEST IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION DOES NOT ESTABLISH THAT THE DECISION WAS BASED ON ERROR OF LAW OR FACT.

MATTER OF: R.S. DATA SYSTEMS-- RECONSIDERATION, DEC. 18, 1985:

R.S. DATA SYSTEMS (RSD) REQUESTS THAT WE RECONSIDER OUR DECISION IN R.S. DATA SYSTEMS, B-220961, NOV. 21, 1985, 65 COMP.GEN. ***, 85-2 CPD PARA. ***. IN ADDITION, RSD REQUESTS THAT IT BE PAID ITS BID PREPARATION EXPENSES AND ITS ATTORNEY'S FEES.

WE AFFIRM OUR PRIOR DECISION AND DENY RSD'S CLAIM FOR ITS COSTS.

IN OUR PRIOR DECISION, WE DISMISSED RSD'S PROTEST AGAINST THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'S (HUD) REJECTION OF RSD'S BID UNDER INVITATION FOR BIDS (IFB) NO. 85-877. RSD, A SMALL BUSINESS, PROTESTED THAT, AFTER THE CONTRACTING OFFICER FOUND RSD TO BE NONRESPONSIBLE, HE FAILED TO SUBMIT TO THE SMALL BUSINESS ADMINISTRATION (SBA), FOR ITS CERTIFICATE OF COMPETENCY (COC) DETERMINATION, INFORMATION WHICH RSD SUPPLIED TO THE CONTRACTING OFFICER WHICH RSD BELIEVES SUPPORTS RSD'S POSITION THAT IT IS A RESPONSIBLE CONTRACTOR. HOWEVER, WE REJECTED RSD'S ARGUMENT THAT THE CONTRACTING OFFICER WAS REQUIRED TO SUPPLY SBA WITH THE INFORMATION, BECAUSE THE BURDEN IS ON THE CONTRACTOR TO PROVE THROUGH ITS COC APPLICATION TO SBA THAT IT IS RESPONSIBLE, AND RSD ITSELF HAD THE OPPORTUNITY TO SUPPLY SBA WITH THE INFORMATION. SEE FEDERAL ACQUISITION REGULATION (FAR), 489 C.F.R. SEC. 19.602-2(A) (1984); JBS CONSTRUCTION CO., B-187574, JAN. 31, 1977, 77-1 CPD PARA. 79.

THE PROTESTER CITES OUR DECISION IN KEPNER PLASTICS FABRICATORS. INC.; HARDING POLLUTION CONTROLS CORP., B-184451, B-184394, JUNE 1, 1976, 76-1 CPD PARA. 351, FOR THE PROPOSITION THAT THE GAO MAY RECOMMEND THAT SBA RECONSIDER ITS COC DETERMINATION WHEN VITAL RESPONSIBILITY INFORMATION HAS NOT BEEN CONSIDERED. HOWEVER, KEPNER IS A CASE WHERE THE SBA DID ISSUE A COC, AND THE RECORD DISCLOSED THAT THE CONTRACTING OFFICER MAY NOT HAVE FORWARDED TO THE SBA ALL AVAILABLE INFORMATION WHICH WOULD TEND TO SHOW THAT THE AWARDEE WAS NOT RESPONSIBLE. WE CONCLUDED THAT THE POSSIBLE FAILURE OF THE SBA TO CONSIDER CERTAIN DEFINITIVE RESPONSIBILITY ISSUES MAY HAVE PREJUDICED OTHER BIDDERS.

KEPNER IS NOT APPLICABLE TO THE CASE AT HAND. IN KEPNER, THE CONTRACTING OFFICER FAILED TO ALERT THE SBA TO ALL THE WAYS THAT THE PROSPECTIVE AWARDEE MAY BE NONRESPONSIBLE. HERE, HOWEVER, THE CONTRACTING OFFICER SUBMITTED TO SBA ADEQUATE INFORMATION TO SHOW THAT RSD WAS NONRESPONSIBLE. AT THAT POINT, IT WAS INCUMBENT UPON RSD, TO SUBMIT ALL RELEVANT INFORMATION AND PROVE THROUGH ITS APPLICATION FOR A COC TO SBA THAT IT WAS RESPONSIBLE. SEE SHIFFER INDUSTRIAL EQUIPMENT, INC., B-184477, OCT. 28, 1976, 76-2 CPD PARA. 366, RSD HAS NOT SHOWN HOW IT WAS PREJUDICED BY THE CONTRACTING OFFICER'S FAILURE TO SUBMIT INFORMATION THAT RSD ITSELF HAD THE BURDEN AND OPPORTUNITY TO SUBMIT TO SBA IN MAKING ITS APPLICATION FOR A COC. SEE SHIFFER INDUSTRIAL EQUIPMENT, INC., B-184477, SUPRA,; GALLERY INDUSTRIES, INC.- REQUEST FOR RECONSIDERATION, B-185963, JUNE 16, 1976, 76-1 CPD PARA. 383.

RSD ALSO CITES OUR DECISIONS IN HARPER ENTERPRISES, B-179026, JAN. 25, 1974, 53 COMP.GEN. 496, 74-1 CPD PARA. 31. AND GALLERY INDUSTRIES, INC.-- REQUEST FOR RECONSIDERATION, B-185963, SUPRA, AS STANDING FOR THE PROPOSITION THAT GAO WILL MAKE "APPROPRIATE RECOMMENDATIONS IN COC SITUATIONS WHERE THE RECORD DISCLOSES THAT INFORMATION VITAL TO RESPONSIBILITY DETERMINATION HAS NOT BEEN CONSIDERED." HOWEVER, NEITHER OF THESE CASES INVOLVED A SITUATION, AS HERE, WHERE THE CONTRACTOR HAD AN OPPORTUNITY TO PROVIDE SBA WITH INFORMATION BUT DID NOT. IN FACT, IN OUR GALLERY INDUSTRIES DECISION, IN DECLINING TO CONSIDER THE MERITS OF A PROTEST AGAINST THE DETERMINATION OF NONRESPONSIBILITY AND THE SBA'S DENIAL OF A COC, WE CONCLUDED:

OF PARTICULAR IMPORTANCE, AFTER THE DETERMINATION OF NONRESPONSIBILITY BY THE AGENCY, GALLERY WAS AFFORDED AN OPPORTUNITY TO FURNISH DETAILED DATA TO SBA ON THE QUESTION OF ITS COMPETENCY TO DO THE WORK.

SIMILARLY, RSD HAD AN OPPORTUNITY TO PROVIDE SBA WITH THE INFORMATION IN QUESTION AFTER HUD DETERMINED RSD WAS NONRESPONSIBLE, BUT DID NOT.

RSD ALSO OBJECTS TO THE STATEMENT IN OUR PRIOR DECISION THAT WE DID NOT CONSIDER IT MATERIAL IF NO COPY OF THE SOLICITATION WAS SENT TO SBA BY THE CONTRACTING OFFICER NOTWITHSTANDING THAT FAR, 48 C.F.R. SEC. 19.602- 1(C)(2), REQUIRES A COPY TO BE FURNISHED IN CONNECTION WITH A COC REFERRAL. RSD OBJECTS TO THIS STATEMENT BECAUSE IT BELIEVES THAT SBA NEEDS THE SOLICITATION TO DETERMINE WHETHER IT IS NECESSARY FOR ITS COC DETERMINATION. HOWEVER, AS WE INDICATED IN THE PRIOR DECISION, IF IT WAS NECESSARY, WE ARE NOT AWARE OF ANYTHING THAT WOULD PRECLUDE SBA FROM OBTAINING A COPY WHEN IT IS FOUND TO BE ABSENT FROM THE REFERRED RECORD. IN OUR VIEW, THE OMISSION IS A MATTER OF FORM THAT SBA COULD HAVE READILY REMEDIED AND RSD HAD NOT SHOWN OTHERWISE.

SINCE RSD'S REQUEST FOR RECONSIDERATION DOES NOT ESTABLISH THAT OUR PRIOR DECISION WAS BASED ON ERROR OF FACT OR LAW, THE DISMISSAL OF RSD'S PROTEST IS AFFIRMED. RSD'S REQUEST THAT IT BE PAID ITS BID PREPARATION EXPENSES AND ATTORNEY'S FEES IS THEREFORE DENIED. MONARCH ENGINEERING CO., B-218374, JUNE 21, 1985, 85-1 CPD PARA. 709.