B-224345, JUN 26, 1986

B-224345: Jun 26, 1986

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WHERE SMALL BUSINESS ADMINISTRATION DECLINES TO ISSUE A CERTIFICATE OF COMPETENCY ON BASIS THAT APPLICANT IS NOT A SMALL BUSINESS. GENERAL ACCOUNTING OFFICE WILL REVIEW PROTEST OF CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION. ALLIED'S BID WAS REJECTED BY THE CONTRACTING OFFICER BASED ON HIS FINDING THAT ALLIED WAS NOT A RESPONSIBLE BIDDER. THE SBA REFUSED TO ISSUE A COC BASED ON ITS DETERMINATION THAT ALLIED IS NOT A SMALL BUSINESS. ALLIED CONTENDS THAT A DISCREPANCY EXISTS BETWEEN THE FEDERAL ACQUISITION REGULATION (FAR) AND SBA REGULATIONS CONCERNING THE SIZE STATUS OF A BUSINESS WHEN A CERTAIN PERCENTAGE OF THE TOTAL VALUE OF KIT IS TO BE MANUFACTURED BY OTHER THAN A SMALL BUSINESS.

B-224345, JUN 26, 1986

CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - SIZE DETERMINATION DIGEST: 1. SINCE SMALL BUSINESS ADMINISTRATION HAS CONCLUSIVE STATUTORY AUTHORITY TO DETERMINE SMALL BUSINESS STATUS FOR FEDERAL PROCUREMENT PURPOSES, GENERAL ACCOUNTING OFFICE DOES NOT CONSIDER SIZE STATUS PROTESTS. CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - RESPONSIBILITY DETERMINATION - NONRESPONSIBILITY FINDING - REVIEW BY GAO 2. WHERE SMALL BUSINESS ADMINISTRATION DECLINES TO ISSUE A CERTIFICATE OF COMPETENCY ON BASIS THAT APPLICANT IS NOT A SMALL BUSINESS, GENERAL ACCOUNTING OFFICE WILL REVIEW PROTEST OF CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION.

ALLIED SALES AND ENGINEERING, INC.:

ALLIED SALES AND ENGINEERING, INC. PROTESTS THE ACTIONS TAKEN BY THE U.S. ARMY TANK-AUTOMOTIVE COMMAND (TACOM) AND THE SMALL BUSINESS ADMINISTRATION (SBA) CONCERNING ALLIED'S BID UNDER INVITATION FOR BIDS (IFB) NO. DAAE07- 86-B-A085 ISSUED BY THE ARMY FOR ENGINE KITS.

ALLIED'S BID WAS REJECTED BY THE CONTRACTING OFFICER BASED ON HIS FINDING THAT ALLIED WAS NOT A RESPONSIBLE BIDDER. AS A RESULT OF THIS FINDING, ALLIED APPLIED TO THE SBA FOR A CERTIFICATE OF COMPETENCY (COC). THE SBA REFUSED TO ISSUE A COC BASED ON ITS DETERMINATION THAT ALLIED IS NOT A SMALL BUSINESS.

ALLIED CONTENDS THAT A DISCREPANCY EXISTS BETWEEN THE FEDERAL ACQUISITION REGULATION (FAR) AND SBA REGULATIONS CONCERNING THE SIZE STATUS OF A BUSINESS WHEN A CERTAIN PERCENTAGE OF THE TOTAL VALUE OF KIT IS TO BE MANUFACTURED BY OTHER THAN A SMALL BUSINESS. ALLIED APPARENTLY BELIEVES THAT IT QUALIFIES AS A SMALL BUSINESS UNDER THE FAR PROVISION.

THE SBA REGULATION STATES THAT A CONCERN CAN QUALIFY AS A SMALL BUSINESS ONLY IF IT MEETS ALL OTHER QUALIFICATIONS OF A SMALL NONMANUFACTURER AND IF MORE THAN 50 PERCENT OF THE TOTAL VALUE OF THE KIT AND ITS CONTENTS IS ACCOUNTED FOR BY ITEMS MANUFACTURED BY A SMALL BUSINESS 13 C.F.R. SEC. 121.5(B)(2)(II) (1986). THE EXACT LANGUAGE OF THE SBA REGULATION IS REPEATED IN FAR, SEC. 19.102(F)(2) (FAC 84-12, JAN. 20, 1986). THEREFORE, ALLIED'S ALLEGATION THAT THERE IS A DISCREPANCY BETWEEN THE TWO PROVISIONS IS WITHOUT MERIT.

IN ANY EVENT, TO THE EXTEND ALLIED IS CHALLENGING THE SBA'S DETERMINATION THAT IT IS NOT A SMALL BUSINESS, THE SBA HAS CONCLUSIVE AUTHORITY UNDER 15 U.S.C. SEC. 637(B)(6) (1982) TO DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT PURPOSES. BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(2) (1986); MARK DUNNING INDUSTRIES, INC., B-217500, JAN. 18, 1985, 85-1 CPD PARA. 68. SINCE ALLIED HAS BEEN FOUND NOT TO QUALIFY AS A SMALL BUSINESS, WE WILL CONSIDER ALLIED'S PROTEST TO THE EXTENT THAT IT CHALLENGES TACOM'S DETERMINATION THAT ALLIED IS NONRESPONSIBLE. SEE MARTIN ELECTRONICS, INC., B-221298, MAR. 13, 1986, 86-1 CPD PARA. 252. ALLIED HAS PRESENTED NO EVIDENCE, HOWEVER, TO SHOW THAT TACOM'S DETERMINATION WAS UNREASONABLE, AND WE THUS FIND ALLIED'S CHALLENGE TO THE NONRESPONSIBILITY DETERMINATION TO BE WITHOUT MERIT.

THE PROTEST IS DISMISSED.