B-227369.4, Aug 20, 1987, Office of General Counsel

B-227369.4, Aug 20, 1987, Office of General Counsel

PROCUREMENT - Bid Protests - Moot allegation - GAO review DIGEST: 1. GAO will not consider protest where a small business protester's initial objection that its bid improperly was rejected as nonresponsive has been rendered academic by contracting agency's redetermination of responsiveness. PROCUREMENT - Socio-Economic Policies - Small businesses - Responsibility - Negative determination - GAO review 2. GAO will not review a contracting officer's finding that a small business concern is nonresponsible since the Small Business Administration has conclusive authority to determine the responsibility of small business concerns under its certificate of competency procedures.

J. L. Wetherington, President:

We refer to your letter to our office dated August 3, 1987, concerning the Army's rejection of your bid under invitation for bids No. DABT57-87-B -0017. On July 9, 1987, you protested to this Office that the Army improperly rejected your bid for failure to sign the bid. By letter of July 29, 1987, the Army advised this office that your bid had been determined responsive; that is, that the failure to sign the bid would not be grounds for rejection of your bid. Thus, in view of the Army's determination that your bid is responsive, your protest against the rejection of your bid was academic. Instrumentation Communication Engineering, Inc., B-213062, Feb. 10, 1984, 84-1 CPD Para. 166. Accordingly, we dismissed your protest concerning this matter.

Our records also indicate that the Army, following a preaward survey, found your firm nonresponsible. Since Superior Communication is a small business, the Army referred the matter of Superior's is responsibility to the Small Business Administration (SBA). As we explained in our decision in Superior Communication Service, Inc.-- Reconsideration, B-227369.2, June 25, 1987, 87-1 CPD Para. 631, it is the SBA's statutory function (and not the function of this Office) to review an agency's finding of nonresponsibility and determine conclusively a small business concern's responsibility by either issuing or refusing to issue a certificate of competency (COC) in accord with the Small Business Act, 15 U.S.C. Sec. 637(b)(7) (Supp. III 1985).

You complain that award was made prior to referring the negative responsibility determination to SBA. The Federal Acquisition Regulation (FAR), 48 C.F.R. Sec. 19.602-1(a) (1986), provides that upon determining that a "responsive" small business lacks certain elements of responsibility the contracting officer shall-- "(1) withhold contract award; and (2) refer the matter to the cognizant SBA Regional Office.

The Army has advised our Office that upon determining that Superior Communication's bid was responsive, the nonresponsibility determination was referred to SBA for possible issuance of a COC. However, since Superior Communication's bid initially was determined nonresponsive there was no basis for referring the matter to the SBA or withholding award at that time.

Since at this time the matter of your firm's responsibility is properly before the SBA, we are closing our files in this matter.