Protest of Army Contract Award

B-200175: Jun 16, 1981

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A firm protested the award of a contract issued by the Army. The record showed that the contracting officer initially determined that the protester, a small business, was nonresponsible and referred the matter to the Small Business Administration (SBA) for the possible issuance of a certificate of competency (COC). The SBA issued a COC but then reopened the matter as the result of the receipt of new information which had not been previously considered. Shortly thereafter, SBA reversed its decision and decided not to issue a COC. Consequently, the contract was awarded to the second low offeror. In its protest, the protester contended that: neither the SBA nor the contracting officer had the legal authority to seek reconsideration of the issuance of its COC; the procedures followed in the reconsideration of its COC and the subsequent denial of the COC violated its rights under the fifth amendment; the revocation of its COC was improper because SBA relied on erroneous allegations that were furnished by the contracting agency; the reconsideration and the subsequent denial of its COC was tainted because it originated in part with the unauthorized disclosure of information obtained during the course of the preaward survey; it was inappropriate for GAO to proceed with the protest until the protester had been furnished copies of certain exhibits to the agency's report; the awardee's price was unreasonable; and the awardee was not able to meet the contractor's delivery schedule. GAO held that: the protests against the reconsideration of the COC and the procedures followed, which allegedly denied the protester due process under the fifth amendment, were untimely since they were not filed within the time limits prescribed in GAO bid protest procedures; the contention that the revocation of the protester's COC was improper because SBA mistakenly relied upon erroneous allegations furnished by the contracting agency was also untimely; the protester provided no evidence to prove that the preaward survey information was either confidential or protected; documents not furnished to a protester may be considered in deciding a bid protest, and the protester's sole remedy to obtain undisclosed documents from the agency is by a Freedom of Information Act suit; the protester had not proven that the contracting agency's determination of price reasonableness was not rationally based; and it would not challenge the agency's determination of the awardee's responsibility.