B-225100, NOV 14, 1986, 86-2 CPD 562

B-225100, NOV 14, 1986, 86-2 CPD 562

PROCUREMENT - SOCIO-ECONOMIC POLICIES - SMALL BUSINESSES - RESPONSIBILITY - COMPETENCY CERTIFICATION - GAO REVIEW DIGEST: GENERAL ACCOUNTING OFFICE WILL NOT REVIEW AN AGENCY'S REJECTION OF A SMALL BUSINESS BIDDER AS NONRESPONSIBLE WHERE, FOLLOWING THE AGENCY'S REFERRAL OF THE CONTRACTING OFFICER'S NEGATIVE RESPONSIBILITY DETERMINATION TO THE SMALL BUSINESS ADMINISTRATION (SBA), THE BIDDER FAILED TO PROVIDE INFORMATION REQUIRED BY THE SBA FOR A CERTIFICATE OF COMPETENCY.

BELMONT-SCHICK INC.:

BELMONT-SCHICK INC. (BELMONT) PROTESTS THE AWARD OF A CONTRACT UNDER U.S. ARMY INVITATION FOR BIDS (IFB) NO. DAAA09-86-T-1013 TO ANY BIDDER OTHER THAN ITSELF. BELMONT ALLEGES THAT IS WAS THE APPARENT LOW BIDDER UNDER THE SOLICITATION, BUT THAT THE ARMY IMPROPERLY DETERMINED THAT THE FIRM WAS NONRESPONSIBLE AND THEREFORE INELIGIBLE FOR AWARD. WE DISMISS THE PROTEST.

BELMONT INDICATES THAT AFTER BIDS HAD BEEN OPENED AND BELMONT'S BID OF $17,500 HAD BEEN DETERMINED TO BE THE APPARENT LOW BID, THE CONTRACTING OFFICER REQUESTED THAT DEFENSE CONTRACT ADMINISTRATION SERVICES AREA/SAN FRANCISCO (DCASMA) PERFORM A PREAWARD SURVEY. THE PROTESTER CONTENDS THAT IT WAS IMPROPER TO REQUEST A PREAWARD SURVEY BECAUSE THE FEDERAL ACQUISITION REGULATION, (FAR) 48 C.F.R. SEC. 9.106 1 (1985), ALLEGEDLY PROSCRIBES SUCH ACTION WHEN THE CONTEMPLATED CONTRACT WILL BE FOR $25,000 OR LESS. BELMONT ALSO ARGUES, IN ESSENCE, THAT THE PREAWARD SURVEY WAS INCORRECT IN ANY CASE, SINCE BELMONT ALLEGEDLY WAS NOT CONTACTED DIRECTLY BY DCASMA TO INQUIRE ABOUT ITS FINANCIAL CAPABILITIES, AND BECAUSE THE FIRM ALLEGEDLY IS RESPONSIBLE.

WE DO NOT AGREE THAT THE AGENCY WAS PRECLUDED BY REGULATION FROM CONDUCTING A PREAWARD SURVEY. THE FAR PROVISION ON WHICH BELMONT RELIES, 48 C.F.R. SEC. 9.106-1(A), STATES THAT NO PREAWARD SURVEY SHOULD BE REQUESTED FOR CONTRACTS OF THIS VALUE "UNLESS CIRCUMSTANCES JUSTIFY ITS COST OR THE MATTER REQUIRES REFERRAL TO THE SMALL BUSINESS ADMINISTRATION." FURTHERMORE, A CONTRACTING OFFICER HAS BROAD DISCRETION AS TO WHETHER TO CONDUCT A PREAWARD SURVEY AND THE DEGREE OF RELIANCE TO BE PLACED ON THE SURVEY. MARTIN ELECTRONICS, INC., B-221298, MAR. 13, 1986, 86-1 CPD PARA. 252.

WE HAVE BEEN ADVISED BY THE ARMY THAT THE CONTRACTING OFFICER INITIALLY DETERMINED BELMONT TO BE NONRESPONSIBLE. BECAUSE BELMONT IS A SMALL BUSINESS CONCERN, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) TO DETERMINE WHETHER A CERTIFICATE OF COMPETENCY (COC) WOULD BE ISSUED. THE SBA DECLINED TO ISSUE A COC, HOWEVER, BECAUSE BELMONT FAILED TO PROVIDE FINANCIAL INFORMATION IN CONNECTION WITH THE COC.

WHERE THE PROCURING AGENCY HAS REFERRED THE CONTRACTING OFFICER'S NEGATIVE RESPONSIBILITY DETERMINATION OF A SMALL BUSINESS FIRM TO THE SBA AS REQUIRED BY 15 U.S.C. SEC. 637(B)(7) (SUPP. III 1985) FOR CONSIDERATION UNDER THE SBA'S COC PROCEDURES, IT IS THE RESPONSIBILITY OF THE SMALL BUSINESS FIRM TO FILE A COMPLETE AND ACCEPTABLE COC APPLICATION WITH THE SBA. SPECTRUM ENTERPRISES, B-221202, DEC. 31, 1985, 86-1 CPD PARA. 5. WHERE THE FIRM FAILS TO MEET THIS RESPONSIBILITY, WE WILL NOT QUESTION THE CONTRACTING OFFICER'S NEGATIVE RESPONSIBILITY DETERMINATION SINCE SUCH A REVIEW WOULD, IN EFFECT, AMOUNT TO A SUBSTITUTION OF THIS OFFICE FOR THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW THESE DETERMINATIONS. ION EXCHANGE PRODUCTS, INC., B-218578, B-218579, JULY 15, 1985, 85-2 CPD PARA. 52.

THE PROTEST IS DISMISSED.