B-236662.2, Sep 28, 1989, 89-2 CPD 285

B-236662.2: Sep 28, 1989

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PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Prior dismissal of protest by small business concern against the Small Business Administration's (SBA) refusal to issue a certificate of competency (COC) is affirmed since protester on reconsideration again fails to show possible bad faith or fraud on the part of SBA. Argument on reconsideration that SBA would reconsider matter if contracting officer would agree to request that the case to be reopened does not establish that original dismissal was based on any error of fact or law. There is no requirement that the agency request that the SBA reconsider its refusal to issue a COC. The question of the firm's responsibility was referred to the Small Business Administration (SBA).

B-236662.2, Sep 28, 1989, 89-2 CPD 285

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Prior dismissal of protest by small business concern against the Small Business Administration's (SBA) refusal to issue a certificate of competency (COC) is affirmed since protester on reconsideration again fails to show possible bad faith or fraud on the part of SBA. Argument on reconsideration that SBA would reconsider matter if contracting officer would agree to request that the case to be reopened does not establish that original dismissal was based on any error of fact or law. In any event, generally, there is no requirement that the agency request that the SBA reconsider its refusal to issue a COC.

Noe & Luebbert Construction Co., Inc.-- Request for Reconsideration:

Noe & Luebbert Construction Co., Inc. requests reconsideration of our dismissal of its protest concerning solicitation No. DACW41-89-B-1217, issued by the U.S. Army Corps of Engineers. Noe Luebbert, a small business concern, alleged in its protest that its bid had improperly been rejected by the contracting officer as nonresponsible. The question of the firm's responsibility was referred to the Small Business Administration (SBA), and the SBA declined to issue a certificate of competency (COC). /1/ The SBA by statute has conclusive authority to determine the responsibility of a small business by issuing or failing to issue a COC and our Office will not review this determination absent a showing of possible fraud or bad faith on the part of the government officials. 4 C.F.R. Sec. 21.3(m)(3) (1989). Since the protester did not allege fraud or bad faith concerning the SBA's decision, we dismissed the protest. We remain of the opinion that the matter is not for our consideration on the merits, and affirm our dismissal.

Noe & Luebbert's request for reconsideration consists of the following sentence: "The SBA would reconsider our eligibility for certificate of competency if the contracting officer from the Corps of Engineer would open the case."

Under our Bid Protest Regulations, a request for reconsideration must contain a detailed statement of the factual and legal grounds upon which reversal or modification of a decision is deemed warranted and must specify any errors of law made in the decision, or information not previously considered. 4 C.F.R. Sec. 21.12(a).

Here, the protester has not alleged, much less proven, any error of fact or law that would warrant reversal of our dismissal. Notwithstanding Noe & Luebbert's desire for the SBA to reconsider its COC eligibility, where a bidder has been found nonresponsible and the SBA has denied the bidder a COC, there generally is no legal requirement that the agency request the SBA's reconsideration of the matter. See Eagle Bob Trail Tractors, Inc., B-232346.2, Jan. 4, 1989, 89-1 CPD Para. 5; Federal Acquisition Regulation Sec. 19.602-4(a) and (c) (FAC 8412).

We therefore have no basis upon which to reconsider our dismissal.

/1/ The SBA has found that the protester did not meet the eligibility requirements for a certificate of competency because the firm was not performing a significant portion of the work. We have concluded that the SBA's finding of ineligibility is tantamount to an affirmation of the contracting agency's finding on nonresponsibility and not reviewable by our Office absent a showing of possible fraud or bad faith. Astrodyne Inc.-- Request for Reconsideration, B-231509.2, July 7, 1988, 88-2 CPD Para. 24.