B-229691, B-229728, Mar 1, 1988, 88-1 CPD 213

B-229691,B-229728: Mar 1, 1988

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PROCUREMENT - Socio-Economic Policies - Small Businesses - Competency Certification - Eligibility - Criteria PROCUREMENT - Socio-Economic Policies - Small Businesses - Responsibility - Competency Certification - GAO Review DIGEST: Eligibility for a certificate of competency (COC) under the Small Business Administration (SBA) regulations is conditioned on a small business' performance of a significant portion of the contract work. The General Accounting Office will not review an SBA determination that a firm is ineligible for a COC on this ground except in limited circumstances. Both solicitations were for the removal and disposal of asbestos insulation and the reinsulation of various buildings.

B-229691, B-229728, Mar 1, 1988, 88-1 CPD 213

PROCUREMENT - Socio-Economic Policies - Small Businesses - Competency Certification - Eligibility - Criteria PROCUREMENT - Socio-Economic Policies - Small Businesses - Responsibility - Competency Certification - GAO Review DIGEST: Eligibility for a certificate of competency (COC) under the Small Business Administration (SBA) regulations is conditioned on a small business' performance of a significant portion of the contract work. The General Accounting Office will not review an SBA determination that a firm is ineligible for a COC on this ground except in limited circumstances.

Coliseum Construction, Inc:

Coliseum Construction, Inc. protests the rejection of its bids under invitation for bids No. 691-180-87 issued by the Veterans Administration (VA) and invitation for bids No. DAKF01-87-B-0023 issued by the Department of the Army. Both solicitations were for the removal and disposal of asbestos insulation and the reinsulation of various buildings.

We deny the protests.

The Army and the VA rejected Coliseum's bids after determining that Coliseum was not a responsible bidder. Because Coliseum is a small business concern, each agency referred its nonresponsibility determination to the Small Business Administration (SBA) for consideration under SBA's certificate of competency (COC) procedures, as required by 15 U.S.C. Sec. 637(b)(7) (1982). The SBA refused to issue a COC in both cases because it found that Coliseum intended to subcontract a major portion of the contract work, in conflict with SBA's rule, 13 C.F.R. Sec. 125.5(b) (1987), which states that a small business concern must perform a significant portion of the work with its own facilities and Personnel in order to be eligible for a COC. Coliseum requests that our Office review the findings of SBA, stating that SBA willfully disregarded information submitted by Coliseum.

The SBA, not this Office, has the statutory authority to review a contracting officer's finding of nonresponsibility and then to determine conclusively a small business concern's responsibility. Our Office limits its review of the denial of a COC to instances in which the protester makes a showing of either possible fraud or bad faith on the part of the contracting officials or that SBA failed to consider vital information bearing on the firm's responsibility. Spheres Co., B-225755, June 5, 1987, 87-1 CPD Para. 573.

In the VA case, Coliseum argues that in its request for a COC, it indicated that it planned to subcontract only 54 percent of the work, and that the 46 percent to be performed by Coliseum was a significant portion of the contract. Coliseum contends that SBA failed to consider this information.

The SBA reports that it considered the information Coliseum submitted and reached its own conclusions based upon its independent assessment of that information. We have examined the record, and find that it supports SBA's assertion. The SBA found that not only did Coliseum plan to subcontract 54 percent of the work, but that Coliseum lacked the necessary expertise, certifications, licenses and insurance to perform most of the work. SBA concluded that regardless of the percentage to be subcontracted, Coliseum could not perform the key aspects of the job. Thus, Coliseum appears to be disagreeing with SBA's conclusions, rather than with the facts on which those conclusions were based. This disagreement does not demonstrate a reasonable possibility that Coliseum 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. Aqua Sciences International, Inc.-- Request for Reconsideration, B-225452.2, Feb. 5, 1987, 87-1 CPD Para. 127.

Regarding the Army solicitation, Coliseum's protest letter claimed that the Army told Coliseum that it could not receive the award because SBA had refused to issue a COC in the VA case. The record is clear, however, that the Army found Coliseum nonresponsible on October 20, 1987, before the protester had applied for a COC for the VA contract. Coliseum applied for COCs for both contracts on October 26, 1987. Thus, the SBA's decision in the VA case could not have influenced the Army's nonresponsibility determination.

Coliseum does not refute any of the above facts in its response to the Army and SBA reports. The protester merely incorporated by reference its comments on the VA's report.

The record shows that the SBA made a separate review for the Army solicitation and came to the same conclusions as in the VA case.

The protests are denied.