B-225452.2, FEB 5, 1987, 87-1 CPD 127

B-225452.2: Feb 5, 1987

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DISMISSAL OF PROTEST IS AFFIRMED. DISMISSED THE PROTEST BECAUSE OUR OFFICE GENERALLY DOES NOT REVIEW SUCH MATTERS UNLESS THE PROTESTER CAN SHOW EITHER THAT GOVERNMENT OFFICIALS MAY HAVE ACTED FRAUDULENTLY OR IN BAD FAITH OR THAT SBA FAILED TO CONSIDER VITAL INFORMATION BEARING ON THE FIRM'S RESPONSIBILITY. ASI ARGUES THAT ITS PROTEST SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT ALLEGED THAT THE CONTRACTING AGENCY (THE DEPARTMENT OF THE ARMY) ACTED IN BAD FAITH BY FAILING TO SUBMIT TO SBA. INFORMATION WHICH ASI SUPPLIED TO THE ARMY THAT ASI BELIEVES SUPPORTS ASI'S POSITION THAT IT IS A RESPONSIBLE CONTRACTOR (THAT INFORMATION WAS ASI'S REBUTTAL TO THE PRE-AWARD SURVEY). ASI WAS AFFORDED THE OPPORTUNITY TO REBUT THE SURVEY TO THE SBA.

B-225452.2, FEB 5, 1987, 87-1 CPD 127

PROCUREMENT - SOCIO-ECONOMIC POLICIES - SMALL BUSINESSES - COMPETENCY CERTIFICATION - BAD FAITH - ALLEGATION SUBSTANTIATION DIGEST: WHERE PROTESTER HAS NOT SHOWN THAT GOVERNMENT OFFICIALS ACTED FRAUDULENTLY OR IN BAD FAITH IN REFUSING TO ISSUE CERTIFICATE OF COMPETENCY, DISMISSAL OF PROTEST IS AFFIRMED.

AQUASCIENCES INTERNATIONAL, INC.-- REQUEST FOR RECONSIDERATION:

AQUASCIENCES INTERNATIONAL, INC. (ASI), REQUESTS THAT WE RECONSIDER OUR DISMISSAL OF ITS PROTEST AGAINST THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AND THE SMALL BUSINESS ADMINISTRATION'S (SBA'S) SUBSEQUENT REFUSAL TO ISSUE A CERTIFICATE OF COMPETENCY (COC). DISMISSED THE PROTEST BECAUSE OUR OFFICE GENERALLY DOES NOT REVIEW SUCH MATTERS UNLESS THE PROTESTER CAN SHOW EITHER THAT GOVERNMENT OFFICIALS MAY HAVE ACTED FRAUDULENTLY OR IN BAD FAITH OR THAT SBA FAILED TO CONSIDER VITAL INFORMATION BEARING ON THE FIRM'S RESPONSIBILITY. FRANKLIN WIRE & CABLE CO.-- RECONSIDERATION, B-218557.2, ET AL., JUNE 5, 1985, 85-1 CPD PARA. 644.

IN ITS REQUEST FOR RECONSIDERATION, ASI ARGUES THAT ITS PROTEST SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT ALLEGED THAT THE CONTRACTING AGENCY (THE DEPARTMENT OF THE ARMY) ACTED IN BAD FAITH BY FAILING TO SUBMIT TO SBA, FOR ITS COC DETERMINATION, INFORMATION WHICH ASI SUPPLIED TO THE ARMY THAT ASI BELIEVES SUPPORTS ASI'S POSITION THAT IT IS A RESPONSIBLE CONTRACTOR (THAT INFORMATION WAS ASI'S REBUTTAL TO THE PRE-AWARD SURVEY), AND SBA ACTED IN BAD FAITH OR FRAUDULENTLY IN DENYING A COC ON GROUNDS OTHER THAN THOSE RELIED ON BY THE ARMY.

UPON RECONSIDERATION, WE AFFIRM OUR DISMISSAL.

THE ARMY PROVIDED SBA WITH A COPY OF THE PRE-AWARD SURVEY. ASI WAS AFFORDED THE OPPORTUNITY TO REBUT THE SURVEY TO THE SBA. AS DISCUSSED BELOW, WE BELIEVE THAT THE SBA DID CONSIDER ALL INFORMATION SUBMITTED BY THE ARMY AND ASI CONCERNING ASI'S RESPONSIBILITY. IN ANY CASE, THE BURDEN IS ON THE CONTRACTOR TO SUBMIT ALL RELEVANT INFORMATION PROVING IT IS RESPONSIBLE WHEN APPLYING TO THE SBA FOR A COC. SEE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 19.602-2(A) (1986); R.S. DATA SYSTEMS, 65 COMP.GEN. 74 (1985), 85-2 CPD PARA. 588, AFF'D, 65 COMP.GEN. 132 (1985), 85-2 CPD PARA. 687.

ASI ALSO CONTENDS THAT THE CONTRACTING OFFICER ACTED IN BAD FAITH BY NOT DELAYING HIS DETERMINATION ON ASI'S RESPONSIBILITY UNTIL ASI RESPONDED TO CONCERNS RAISED IN THE PRE-AWARD SURVEY. THE CONTRACTING OFFICER REPORTS THAT ASI FAILED TO PROVIDE ADDITIONAL DOCUMENTATION CONCERNING THE PRE- AWARD SURVEY BY A CUTOFF DATE ESTABLISHED AFTER THE DEFICIENCIES WERE BROUGHT TO ASI'S ATTENTION. ALTHOUGH ASI DISPUTES THE DATE OF THE CUTOFF, A PROCURING ACTIVITY IS NOT REQUIRED TO DELAY AN AWARD DECISION INDEFINITELY WHILE A BIDDER ATTEMPTS TO CURE THE CAUSES OF ITS NONRESPONSIBILITY. SEE ROARDA, INC., B-204524.5, MAY 7, 1982, 82-1 CPD PARA. 438. IN THIS CASE, WE CONCLUDE ASI WAS TREATED FAIRLY.

ASI ALSO ARGUES THAT SBA ACTED FRAUDULENTLY OR IN BAD FAITH BY REFUSING TO ISSUE A COC FOR A REASON DIFFERENT FROM THAT GIVEN FOR THE ARMY'S DETERMINATION OF NONRESPONSIBILITY. THE RECORD SHOWS THAT THE CONTRACTING OFFICER FOUND ASI NONRESPONSIBLE ON THE BASIS THAT IT LACKED ADEQUATE PLANNING, HAD NO FACILITY OR EQUIPMENT TO PRODUCE THE ITEM, NO EMPLOYEES TO PERFORM THE CONTRACT, AND NO VENDOR COMMITMENTS MADE DIRECTLY TO ASI. SBA, IN REFUSING TO ISSUE THE COC, STATED THAT IT FOUND NO SUFFICIENT REASON FOR DISAGREEING WITH THE DECISION OF THE CONTRACTING OFFICER, AND THAT IT CONSIDERED ASI'S PERFORMANCE PLAN TO BE INADEQUATE.

IN ANY EVENT, CONTRARY TO ASI'S BELIEF, THE COC PROCEDURE IS NOT LIMITED TO A CONSIDERATION OF THE DEFICIENCIES FOUND BY THE CONTRACTING OFFICER. WHILE SBA MAY EVALUATE INFORMATION SUPPLIED BY THE CONTRACTING OFFICER, IT MAKES ITS OWN INDEPENDENT INVESTIGATION OF A FIRM'S RESPONSIBILITY. SEE 13 C.F.R. SEC. 125.2 (1986). WE HAVE FOUND IT IS REASONABLE, FOLLOWING AN INDEPENDENT EVALUATION, FOR SBA TO REFUSE TO ISSUE A COC FOR A REASON DIFFERENT FROM THE CONTRACTING OFFICER'S. CERTIFIED TESTING CORP., B-212242, NOV. 8, 1983, 83-2 CPD PARA. 542; ALS ELECTRONICS CORP., B-179033, FEB. 22, 1974, 74-1 CPD PARA. 92.

ASI ALSO CONTENDS THAT SBA FAILED TO CONSIDER VITAL INFORMATION BEARING ON ITS RESPONSIBILITY. ACCORDING TO ASI, SBA DID NOT CONSIDER THE IMPACT OF MATERIAL COST DISCOUNTS ON THE COST OF CONTRACT PERFORMANCE, THE LIKELIHOOD THAT ASI WOULD RECEIVE PROGRESS PAYMENTS ON THE CONTRACT, THE RELATIVE CLOSENESS OF ASI'S BID PRICE TO OTHER BIDDERS, OR THAT ASI HAD IN EXCESS OF $5,000,000 AVAILABLE TO IT.

OUR REVIEW OF THE RECORD, HOWEVER, SHOWS THAT SBA CONSIDERED ALL THIS INFORMATION, BUT THAT THIS INFORMATION DID NOT RESOLVE SBA'S QUESTIONS ABOUT ASI'S ABILITY TO SUCCESSFULLY PERFORM THE CONTRACT. SBA CONCLUDED THAT THERE WERE TOO MANY INDICATIONS OF INADEQUATE PROJECT PLANNING TO CERTIFY TO ASI'S COMPETENCE TO PERFORM THE CONTRACT SUCCESSFULLY. ASI APPARENTLY DISAGREES WITH SBA'S CONCLUSION, RATHER THAN WITH THE FACTS ON WHICH THE CONCLUSION WAS BASED. SUCH A DISAGREEMENT DOES NOT SHOW A REASONABLE POSSIBILITY THAT ASI WAS DENIED A COC DUE TO FRAUD OR BAD FAITH OR PROVIDE OUR OFFICE WITH OTHER GROUNDS ON WHICH TO UNDERTAKE AN INDEPENDENT REVIEW OF SBA'S DECISION. SEE FRANKLIN WIRE & CABLE CO., B-218557, ET AL., MAY 7, 1985, 85-1 CPD PARA. 511.

IN COMMENTS ON THE AGENCY REPORT PREPARED IN RESPONSE TO ASI'S REQUEST FOR RECONSIDERATION, ASI ARGUES FOR THE FIRST TIME THAT A MEMBER OF THE PRE-AWARD SURVEY TEAM EXHIBITED BLATANT BIAS AGAINST ASI AT A PRE-AWARD SURVEY MEETING, AND THAT THE MEMBER'S CONDUCT TAINTED THE NONRESPONSIBILITY DETERMINATION.

OUR BID PROTEST REGULATIONS DO NOT PERMIT A PIECEMEAL PRESENTATION OF EVIDENCE, INFORMATION, OR ANALYSES. WHERE, AS HERE, A PARTY SUBMITS IN ITS REQUEST FOR RECONSIDERATION AN ARGUMENT THAT IT COULD HAVE PRESENTED AT THE TIME OF THE PROTEST, BUT DID NOT, THE ARGUMENT DOES NOT PROVIDE A BASIS FOR RECONSIDERATION. JOSEPH L. DE CLERK AND ASSOCIATES, INC.-- RECONSIDERATION, B-221723.2, FEB. 26, 1986, 86-1 CPD PARA. 200.

THE DISMISSAL IS AFFIRMED.