GAO Will Not Review Determination To Enter Into Contract Under Section 8(a) of Small Business Act Absent Fraud or Bad Faith

Reconsideration was requested of a dismissed protest against the noncompetitive award by the contracting agency of a contract for reusable metal containers. The request was based on the view that two Small Business Administration (SBA) guidelines for selecting contracts must have been violated by the contracting parties. These state: (1) contracting opportunities will not be accepted by SBA where the percentage of procurements considered for contracting by the judgment of SBA is excessive in relation to the total purchases of like or similar products, or services promoted by the Federal Government; and (2) that it is determined by the SBA that a small business concern may suffer a major hardship if the procurement is removed from competition. The protester argued that had these guidelines been considered in the present case, the contract would not have been selected for the program. Failure to follow those Standard Operating Procedures provisions in effect constitutes a willful disreqard of the facts by the contracting agency. GAO agreed that in this situation, the review should consider whether relevant rules and regulations have been followed by SBA and the contracting agency. The protest and request for reconsideration reflect a disagreement with the results of the contracting officer's review and is a matter for consideration by those parties. It is not sufficient reason for GAO to question the contract. The request for reconsideration was denied.