B-204632.2, DEC 10, 1981

B-204632.2, DEC 10, 1981

DIGEST: GAO WILL NOT UNDERTAKE AN INDEPENDENT REVIEW OF A CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION OF A SMALL BUSINESS FIRM BECAUSE THE SMALL BUSINESS ADMINISTRATION, NOT GAO, HAS THE STATUTORY AUTHORITY TO CONCLUSIVELY DETERMINE A SMALL BUSINESS BIDDER'S RESPONSIBILITY.

NUMAX ELECTRONICS INCORPORATED:

NUMAX ELECTRONICS, INC. PROTESTS THE ARMY'S DETERMINATION THAT NUMAX LACKS ELEMENTS OF RESPONSIBILITY TO SUPPLY ITEMS UNDER INVITATION FOR BIDS NO. DAA09-81-B-2237. NUMAX CONTENDS THE DETERMINATION WAS AN ABUSE OF DISCRETION AND WAS MADE IN BAD FAITH.

WE WILL NOT CONSIDER THE MERITS OF THIS PROTEST.

NUMAX IS A SMALL BUSINESS CONCERN, AND THE ARMY THEREFORE REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A RESPONSIBILITY DETERMINATION PURSUANT TO THE CERTIFICATE OF COMPETENCY (COC) PROCEDURES. SEE DEFENSE ACQUISITION REGULATION SEC. 1-705.4 (1976 ED.). THE SBA HAS NOT YET ISSUED A RULING.

THE SBA, NOT THIS OFFICE, HAS STATUTORY AUTHORITY TO CONCLUSIVELY DETERMINE A SMALL BUSINESS BIDDER'S RESPONSIBILITY BY ISSUING OR REFUSING TO ISSUE A COC. 15 U.S.C. SEC. 637(B)(7) (SUPP III 1979). CONSEQUENTLY, WE WILL NOT UNDERTAKE AN INDEPENDENT REVIEW OF A CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION BECAUSE SUCH ACTION, IN EFFECT, WOULD AMOUNT TO A SUBSTITUTION OF OUR JUDGMENT FOR THAT OF THE SBA, THE AGENCY SPECIFICALLY AUTHORIZED BY STATUTE TO REVIEW SUCH DECISION. F.M.K.APPAREL, INC., B-203253, JUNE 4, 1981, 81-1 CPD 448.

THE PROTEST IS DISMISSED.