B-233603.3, B-233606.3, Sep 11, 1989, 89-2 CPD 225

B-233603.3,B-233606.3: Sep 11, 1989

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROCUREMENT - Socio-Economic Policies - Small businesses - Responsibility - Competency certification - GAO review DIGEST: Where protester was apprised of the reasons for agency's nonresponsibility determination. General Accounting Office will not question a subsequent determination by the Small Business Administration not to issue a certificate of competency in the absence of a showing of bad faith or fraud. Or that vital information was not considered. Techno contends that it was denied due process by the Small Business Administration (SBA) which declined to issue a certificate of competency (COC) to the firm. Techno was the apparent low bidder. Determined that Techno was not a responsible bidder and referred the matter to the SBA for a determination of Techno's responsibility and whether to issue a COC to Techno.

B-233603.3, B-233606.3, Sep 11, 1989, 89-2 CPD 225

PROCUREMENT - Socio-Economic Policies - Small businesses - Responsibility - Competency certification - GAO review DIGEST: Where protester was apprised of the reasons for agency's nonresponsibility determination, General Accounting Office will not question a subsequent determination by the Small Business Administration not to issue a certificate of competency in the absence of a showing of bad faith or fraud, or that vital information was not considered.

Techno Engineering & Construction, Ltd.-- Reconsideration:

Techno Engineering and Construction, Ltd. requests that we reconsider our prior dismissals of two related protests under invitation for bids (IFB) Nos. N62471-88-B-2352 and N62471-88-B-2041, issued by the Department of the Navy. Techno contends that it was denied due process by the Small Business Administration (SBA) which declined to issue a certificate of competency (COC) to the firm.

We affirm our prior dismissals.

At bid opening for both solicitations, Techno was the apparent low bidder. However, the Navy, in November 1988, determined that Techno was not a responsible bidder and referred the matter to the SBA for a determination of Techno's responsibility and whether to issue a COC to Techno. The protester was informed by letter dated January 20, 1989, that SBA declined to issue a COC and subsequently filed protests with our Office.

We dismissed the prior protests because our Office generally does not review SBA decisions regarding the issuance of a COC, since under 15 U.S.C. Sec. 637(b)(7)(C) (1982), the SBA has conclusive authority to rule on the responsibility of small business concerns. Sard Enters. Inc., B-233661, Mar. 16, 1989, 89-1 CPD Para. 280. We will only review COC determinations when a protester's submission indicates that SBA action on a referral for a COC may have been taken fraudulently or in bad faith or that the SBA disregarded information vital to a responsibility determination. ESCO Air Filters, B-225552.2, Mar. 12, 1987, 87-1 CPD Para. 279.

In its request for reconsideration, Techno complains that it was denied due process because SBA allegedly never informed the firm of the reasons why the Navy found the firm to be nonresponsible so that Techno was unable to present evidence which it considered relevant to SBA's determination of its competency. We find Techno's allegation to be factually erroneous.

The SBA has informally advised us that by letter dated December 29, 1988, to Techno, it informed the protester that the finding of nonresponsibility was based on unacceptable past performance on government contracts. Moreover, by letters dated September 19, 1988 and October 7, 1988, the contracting officer had previously informed Techno that he was considering finding Techno nonresponsible because of a lack of capability and capacity as demonstrated by its performance on several specifically listed prior contracts. The letters notified Techno that it had been cited consistently for poor workmanship, poor quality, late completion, lack of effective management, noncompliance with safety and labor standards, and a disregard for the common rules of ethics and integrity. Consequently, it appears that Techno was fully aware of the reasons for the nonresponsibility determination.

We affirm our prior dismissals.