B-238976.2, Jun 14, 1990, 90-1 CPD 567

B-238976.2, Jun 14, 1990, 90-1 CPD 567

PROCUREMENT - Socio-Economic Policies - Small businesses - Responsibility - Competency certification - Negative determination DIGEST: Prior dismissal of a small business protest against contracting officer's nonresponsibility determination is affirmed where the matter was referred to the Small Business Administration which has conclusive authority to determine a small business's responsibility by issuing or refusing to issue a certificate of competency.

Attorneys

Custom Research, Inc.-- Request for Reconsideration:

Custom Research, Inc., requests reconsideration of our March 20, 1990, dismissal of its protest under invitation for bids (IFB) No. DLA120-87-R- 1822, issued by the Defense Logistics Agency (DLA) for blood bank freezers. Custom challenges the agency's finding of nonresponsibility and referral of Custom to the Small Business Administration (SBA) for possible issuance of a certificate of competency (COC). SBA ultimately refused to issue the firm a COC.

We affirm the dismissal.

In its initial protest, Custom asserted that it had adequate production facilities and financial capability to perform the contract and therefore the agency's nonresponsibility determination and referral to SBA was erroneous. We dismissed the protest because we will generally not review a nonresponsibility determination where a small business is concerned since by law the SBA has conclusive authority to determine the responsibility of a small business by issuing or failing to issue a COC. See 15 U.S.C. Sec. 637(b)(7)(A) (1988).

In its request for reconsideration, Custom again argues that the agency should not have determined the firm to be nonresponsible or referred its determination to SBA. Custom contends that we should not have deferred to the SBA COC procedure because it views that procedure as irrelevant since in its judgment there was no basis for an initial nonresponsibility determination by DLA.

Custom misunderstands the purpose of the COC process. It is provided by law to protect small businesses from arbitrary nonresponsibility determinations made by procurement agencies. Custom's complaint is exactly that-- that the determination that it is not responsible is unwarranted. We reiterate that by law it is the SBA, not our Office, that has the authority to review a contracting officer's negative finding of responsibility and then to determine conclusively a small business concern's responsibility. Eagle Bob Tail Tractors, Inc., B-232346.2, Jan. 4, 1989, 89-1 CPD Para. 5. Our Office will not review such matters unless the protester makes a showing that government officials may have acted fraudulently or in bad faith or failed to consider vital information bearing on the firm's responsibility. Franklin Wire and Cable Co.-- Recon., B-218557.2 et al., June 5, 1985, 85-1 CPD Para. 644. Here, Custom did not allege and there is no indication in the record that SBA acted in bad faith or failed to consider relevant information in connection with the denial of the COC.

Since the contracting officer's nonresponsibility decision is subject to a conclusive determination by the SBA, we will not consider Custom's protest of the contracting officer's determination.

The prior dismissal is affirmed.