Protest of Agency Nomination of Firm for Subcontract Award

B-200065.3: May 6, 1981

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A firm protested the manner in which an agency nominated an offeror to the Small Business Administration (SBA) for a subcontract award. An earlier nomination of that firm to the SBA had been withdrawn by the agency. The protester believed that it was improper for the agency to conduct negotiations with the same offeror for purposes of deciding whether to renominate the firm. The protester alleged that, when the agency withdrew the firm's nomination, it should have conducted negotiations with the protesting firm, the next highest technically ranked firm. It contended that the ensuing technical discussions were a sham to provide a basis to permit the nominated firm back into competition and thus were conducted in bad faith. The SBA may authorize a procuring agency to select a potential subcontractor and nominate it to SBA for its approval. GAO will not review SBA determinations under the 8(a) program or nominations made on its behalf absent a showing of fraud or bad faith on the part of Government procurement officials. The protester submitted no evidence of bad faith. SBA never restricted the agency to conducting the negotiations with only the protester, and thus competition was not restricted. The determination to conduct discussions was within the discretion of the agency acting on behalf of SBA. Whether or not SBA decides to award a subcontract to the nominated firm is a matter for SBA to determine. The protest was denied.

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