B-225445.4, Sep 21, 1987, 87-2 CPD 282

B-225445.4: Sep 21, 1987

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PROCUREMENT - Bid Protests - GAO decisions - Recommendations - Convenience termination - Withdrawal DIGEST: Prior decision withdrawing recommendation for corrective action (termination of awarded contract) is affirmed on reconsideration where the protester has not shown any error of fact or law and has provided no new information which would warrant reversal of that decision. The SBA has 15 business days or such longer time as may have been agreed upon to issue or not issue a certificate of competency (COC). The agency is informed of the issuance of a COC. Established that termination was not in the government's interest because of the advanced stage of the procurement and high termination costs.

B-225445.4, Sep 21, 1987, 87-2 CPD 282

PROCUREMENT - Bid Protests - GAO decisions - Recommendations - Convenience termination - Withdrawal DIGEST: Prior decision withdrawing recommendation for corrective action (termination of awarded contract) is affirmed on reconsideration where the protester has not shown any error of fact or law and has provided no new information which would warrant reversal of that decision.

Age King Industries, Inc.-- Reconsideration:

Age King Industries, Inc. requests reconsideration of our decision in Age King Industries, Inc.-- Reconsideration, B-225445.3, July 29, 1987, 87-2 CPD Para. 107, modifying, B-225445.2, June 17, 1987, CPD Para. 602, withdrawing our recommendation that contract No. DLA500-87-C 0203 be terminated.

We affirm our prior decision.

Briefly, where the contracting officer refers a nonresponsibility determination of a small business bidder to the Small Business Administration (SBA), the SBA has 15 business days or such longer time as may have been agreed upon to issue or not issue a certificate of competency (COC). Federal Acquisition Regulation (FAR), 48 C.F.R. Sec. 19.602-2(a) (1986). Here, the SBA missed its deadline for responding and, thereupon, the Defense Logistics Agency (DLA) awarded the contract to another firm, F&H Manufacturing Corporation. In our initial decision, Age King Industries, B-225445.2, supra, we sustained the protest by Age King because SBA, albeit after the deadline, informed DLA of the issuance of a COC prior to DLA taking any action in reliance on the missed deadline. stated that where, prior to making an award, the agency is informed of the issuance of a COC, the agency cannot thereafter knowingly award a contract to other than what it knows to be the low, responsive, responsible bidder as certified by the SBA. Accordingly, we recommended termination of the F&H contract.

Subsequently, on reconsideration requested by DLA, Age King Industries, B-225445.3, supra, we withdrew our recommendation that the contract awarded to F&H be terminated for convenience because DLA had continued performance on the contract (Age King filed its protest more 10 calendar days after award; see 31 U.S.C. Sec. 3553(d)(1) (Supp III (1985)), and established that termination was not in the government's interest because of the advanced stage of the procurement and high termination costs. Instead, we awarded bid preparation and protest costs to Age King.

In its request for reconsideration, Age King alleges that the F&H contract that DLA reported to our Office as being almost complete was not the same contract that Age King had protested. In this regard, DLA indicated in its request for reconsideration that an Industrial Specialist visited F&H's manufacturing facility and found that work under contract No. DLA500-87-C-0203 (the contract at issue) was 93 percent complete and delivery of the solicited items anticipated by August 1, 1987. A copy of the "Plant Visit Request/Report" was included with DLA's reconsideration request to our Office. Age King did not receive a copy of this document and insists that DLA has confused the contract under dispute with a similar contract, No. DLA500 87-M-4687, awarded to F&H more recently.

We have confirmed that the "Plant Visit Request/Report" refers to the same contract as the one that Age King had protested. Further, we also confirmed with DLA that there was no mistake regarding this matter. letter dated September 8, 1987, DLA assures us that the contract awarded to F&H originally for 6,000 crank handles, No. DLA500 87-C-0203, is the one originally protested by Age King and the one discussed by DLA in its request for reconsideration.

Since Age King has not shown any error of fact or law in our previous decision, and has provided no new information, we affirm our prior decision.