B-219536, AUG 13, 1985, OFFICE OF GENERAL COUNSEL

B-219536: Aug 13, 1985

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THE COMPANY CLAIMS THAT IT SHOULD HAVE BEEN AWARDED THE CONTRACT UNDER THE ABOVE-MENTIONED SOLICITATION BECAUSE IT WAS THE LOW OFFEROR. WHEN AN AGENCY DETERMINES THAT A SMALL BUSINESS IS NONRESPONSIBLE. THE AGENCY IS REQUIRED TO REFER THAT DETERMINATION TO THE SBA. WHICH WILL CONCLUSIVELY RESOLVE THE QUESTION BY ISSUING OR REFUSING TO ISSUE A CERTIFICATE OF COMPETENCY (COC). 15 U.S.C. APPLICABLE PROCUREMENT REGULATIONS PROVIDE THAT THE AGENCY WILL WITHHOLD AWARD FOR 15 DAYS. AT THE BEGINNING OF WHICH PERIOD SBA PERSONNEL WILL CONTACT THE OFFEROR AND OFFER IT THE OPPORTUNITY TO APPLY FOR A COC. THIS OFFICE WILL NOT REVIEW A FINDING OF NONRESPONSIBILITY WHERE A PROTESTER FAILS TO APPLY TO THE SBA FOR A COC.

B-219536, AUG 13, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE JOE BARTON: MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 303 WEST KNOX ENNIS, TEXAS 75119

WE RECEIVED YOUR LETTER OF JULY 12, 1985, ON BEHALF OF THE A.J. BAZADIER CO., REGARDING THE AWARD OF THE CONTRACT UNDER SOLICITATION NO. DLA-420-85 -R-5186, ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA). THE COMPANY CLAIMS THAT IT SHOULD HAVE BEEN AWARDED THE CONTRACT UNDER THE ABOVE-MENTIONED SOLICITATION BECAUSE IT WAS THE LOW OFFEROR.

DLA HAS ADVISED US THAT, AS OF JULY 19,.1985, IT HAD NOT YET AWARDED THE CONTRACT, BUT FOUND A.J. BAZADIER CO. TO BE NONRESPONSIBLE AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA). WHEN AN AGENCY DETERMINES THAT A SMALL BUSINESS IS NONRESPONSIBLE, THE AGENCY IS REQUIRED TO REFER THAT DETERMINATION TO THE SBA, WHICH WILL CONCLUSIVELY RESOLVE THE QUESTION BY ISSUING OR REFUSING TO ISSUE A CERTIFICATE OF COMPETENCY (COC). 15 U.S.C. SEC. 637(B)(7)(A) (1982). WE ENCLOSE A COPY OF ONE OF OUR DECISIONS, ELECTRO METHODS, INC., THAT EXPLAINS THIS STATUTORY REQUIREMENT IN GREATER DETAIL.

APPLICABLE PROCUREMENT REGULATIONS PROVIDE THAT THE AGENCY WILL WITHHOLD AWARD FOR 15 DAYS, AT THE BEGINNING OF WHICH PERIOD SBA PERSONNEL WILL CONTACT THE OFFEROR AND OFFER IT THE OPPORTUNITY TO APPLY FOR A COC. THE OFFEROR MUST FILE A COMPLETE AND ACCEPTABLE COC APPLICATION WITH THE SBA IN ORDER TO AVAIL ITSELF OF THE POSSIBLE PROTECTION PROVIDED BY STATUTE AND REGULATION AGAINST UNREASONABLE RESPONSIBILITY DETERMINATIONS BY CONTRACTING OFFICERS.

DLA ADVISES THAT A.J. BAZADIER CO. FAILED TO FILE FOR A COC, AND THE SBA THEREFORE ADVISED DLA TO PROCEED WITH AN AWARD TO ANOTHER OFFEROR. THIS OFFICE WILL NOT REVIEW A FINDING OF NONRESPONSIBILITY WHERE A PROTESTER FAILS TO APPLY TO THE SBA FOR A COC.

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