B-193493, DECEMBER 12, 1978
Highlights
DIGEST: GAO WILL NOT REVIEW CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WHERE SMALL BUSINESS BIDDER DOES NOT AVAIL HIMSELF OF OPPORTUNITY TO FILE FOR CERTIFICATE OF COMPETENCY FROM SMALL BUSINESS ADMINISTRATION. BOTH SOLICITATIONS WERE 100 PERCENT SMALL BUSINESS SET-ASIDES. HAD SUBMITTED THE LOWEST BIDS FOR THE ABOVE ITEMS BUT WAS DETERMINED TO BE NONRESPONSIBLE BY THE CONTRACTING OFFICER. THE BASIS FOR THE DETERMINATION WAS THAT BRADEN FORESTRY SERVICES. BRADEN STATES THAT HE IS THE PRESIDENT AND MAJORITY STOCKHOLDER OF SERVICES AND WE NOTE THAT IN DISCUSSING PRIOR WORK FOR THE FOREST SERVICE HE DOES NOT DISTINGUISH BETWEEN HIMSELF AND THE CORPORATION. AFTER THE EXTENSION WAS GRANTED.
B-193493, DECEMBER 12, 1978
DIGEST: GAO WILL NOT REVIEW CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WHERE SMALL BUSINESS BIDDER DOES NOT AVAIL HIMSELF OF OPPORTUNITY TO FILE FOR CERTIFICATE OF COMPETENCY FROM SMALL BUSINESS ADMINISTRATION, SINCE THAT WOULD RESULT IN SUBSTITUTION OF GAO FOR AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW DETERMINATION.
MILLARD M. BRADEN:
MILLARD M. BRADEN (BRADEN) PROTESTS THAT AWARD TO ANY BIDDER OTHER THAN HIMSELF OF ITEMS 1, 2 AND 3 OF INVITATION FOR BIDS (IFB) 03-78-106 AND ITEM 2 OF IFB 03-78-99, ISSUED BY THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, REGION 2, BLACK HILLS NATIONAL FOREST. BOTH SOLICITATIONS WERE 100 PERCENT SMALL BUSINESS SET-ASIDES.
IT APPEARS THAT BRADEN, BIDDING AS AN INDIVIDUAL, HAD SUBMITTED THE LOWEST BIDS FOR THE ABOVE ITEMS BUT WAS DETERMINED TO BE NONRESPONSIBLE BY THE CONTRACTING OFFICER. THE BASIS FOR THE DETERMINATION WAS THAT BRADEN FORESTRY SERVICES, INC. (SERVICES) HAD DEFAULTED ON TWO PRIOR CONTRACTS FOR WORK SIMILAR TO THE PRESENT PROCUREMENT. BRADEN STATES THAT HE IS THE PRESIDENT AND MAJORITY STOCKHOLDER OF SERVICES AND WE NOTE THAT IN DISCUSSING PRIOR WORK FOR THE FOREST SERVICE HE DOES NOT DISTINGUISH BETWEEN HIMSELF AND THE CORPORATION.
THE CONTRACTING OFFICER AS REQUIRED BY 15 U.S.C. 637(B)(7)(1976), AS AMENDED BY PUB. L. 95-89, SEC. 501, 91 STAT. 553, AND FEDERAL PROCUREMENT REGULATIONS SEC. 1-1.708 (1964 ED. AMEND. 192), REQUESTED A CERTIFICATE OF COMPETENCY (COC) FROM THE SMALL BUSINESS ADMINISTRATION (SBA). SBA REQUESTED BRADEN TO SUBMIT THE REQUIRED INFORMATION WHICH COULD ENABLE IT TO DETERMINE WHETHER A COC SHOULD BE ISSUED. BRADEN REQUESTED AN EXTENSION OF THE 15 DAY TIME LIMIT FOR FILING THE COC APPLICATION. AFTER THE EXTENSION WAS GRANTED, HOWEVER, BRADEN FAILED TO APPLY FOR THE COC.
IT HAS BEEN THE POSITION OF OUR OFFICE THAT A SMALL BUSINESS WHICH FAILS TO FILE AN ACCEPTABLE COC APPLICATION WITH THE SBA DOES NOT AVAIL ITSELF OF THE POSSIBLE RELIEF PROVIDED BY STATUTE AND REGULATION TO AFFORD SMALL BUSINESS CONCERNS A DEGREE OF PROTECTION AGAINST UNREASONABLE DETERMINATIONS AS TO THEIR RESPONSIBILITY BY CONTRACTING OFFICERS. SUCH CIRCUMSTANCES, OUR OFFICE WILL NOT UNDERTAKE A REVIEW OF A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY, SINCE SUCH ACTION WOULD, IN EFFECT, AMOUNT TO A SUBSTITUTION OF OUR OFFICE FOR THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW SUCH DECISIONS. JET INTERNATIONAL, INC., B-191183, FEBRUARY 14, 1978, 78-1 CPD 125.
ACCORDINGLY, THE PROTEST IS DISMISSED.