B-233176, Dec 30, 1988

B-233176, Dec 30, 1988

PROCUREMENT - Socio-Economic Policies - Small businesses - Responsibility - Competency certification - Negative determination DIGEST: The General Accounting Office will not review an allegation concerning a contracting officer's negative responsibility determination of a small business concern where the small business fails to file an application for a certificate of competency with the Small Business Administration.

T.J. O'Brien Company, Inc.:

T.J. O'Brien Company, Inc. protests the rejection of its bid under invitation for bids (IFB) No. 667-18-89 issued as a small business set aside by the Veterans Administration (VA) for preventive maintenance and unlimited emergency service on the government-owned energy management system at the VA Medical Center, Shreveport, Louisiana. The protester argues that the VA improperly found it nonresponsible. We dismiss the protest.

O'Brien was the apparent low bidder on the solicitation. The contracting officer found it nonresponsible and, therefore, ineligible for award. /1/ On October 13, 1988, O'Brien filed a protest with our Office alleging that the contracting officer improperly failed to refer the nonresponsibility determination to the Small Business Administration (SBA) for a final disposition of the matter under its Certificate of Competency (COC) procedures. Following the filing of the protest, the contracting officer did in fact refer the matter to the SBA for a COC. Arguing that the procedures used by the SBA in connection with the processing of the COC were prejudicial to it, O'Brien, however, never completed the necessary application materials. /2/ Consequently, by letter dated November 22, the SBA closed its file with respect to the matter.

Under 15 U.S.C. Sec. 637(b)(7) (1982), the SBA has conclusive authority to determine the responsibility of a small business by issuing or failing to issue a COC. When a contracting agency finds that a small business is nonresponsible, the burden is on the firm to apply for a COC from the SBA in order to avail itself of the protection afforded against unreasonable determinations by the contracting officer. Zan Co., Inc., B-229705, Dec. 15, 1987, 87-2 CPD Para. 598. Where, as here, the firm fails to apply for a COC, we will not review the contracting officer's underlying determination of nonresponsibility since such a review would in effect substitute our Office for the SBA, the agency authorized by statute to review such nonresponsibility determinations. Id.

The protest is dismissed.

/1/ There is a question whether O'Brien's bid under this solicitation could be considered at all because it was one of two bids both contained in one envelope which was not actually opened until 1 hour after the designated bid opening time on the subject solicitation. We need not decide this matter since the agency has treated the bid as acceptable to the extent that it has referred the matter of O'Brien's responsibility to the Small Business Administration.

/2/ Specifically, the protester argues that it was prejudiced by the 5- day deadline set by the SBA for receipt of its application for a COC. The protester does not state, however, that it requested an extension of the deadline. Under the regulations, SBA must take specific action in response to a COC referral within 15 business days (or longer if the SBA and the contracting agency agree). Federal Acquisition Regulation Sec. 19.602-2(a). Consequently, the 5-day deadline set here by the SBA was in our view consistent with this obligation.