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B-216152.2, NOV 13, 1984, 64 COMP.GEN. 63

B-216152.2 Nov 13, 1984
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WHEN THE ONLY BASIS FOR RECONSIDERATION CITED BY THE PROTESTER IS AN UNSUPPORTED ALLEGATION OF BAD FAITH ON THE PART OF AGENCY OFFICIALS. THE REQUEST FOR RECONSIDERATION WILL BE DENIED. JANKE NOW ALLEGES THAT SBA AND THE NAVY HAVE ACTED IN BAD FAITH IN SETTING ASIDE THE PROCUREMENT FOR THE 8(A) PROGRAM. IN WHICH SBA INFORMED JANKE THAT SINCE THE PROCUREMENT WAS CONSIDERED A FIRST-TIME BUY THERE COULD BE NO ADVERSE IMPACT ON JANKE AND THUS THERE WAS NO NEED FOR AN IMPACT STUDY. WHILE JANKE MAY BELIEVE THAT SBA AND THE NAVY WERE ACTING SOLELY TO DEPRIVE JANKE OF AN OPPORTUNITY TO COMPETE. IT HAS SUBMITTED NO EVIDENCE THAT THIS WAS IN FACT THE CASE. INFERENCE AND SUPPOSITION IS NOT SUFFICIENT.

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B-216152.2, NOV 13, 1984, 64 COMP.GEN. 63

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED PROTESTER REQUESTING RECONSIDERATION OF A GENERAL ACCOUNTING OFFICE DECISION MUST PRESENT A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS WARRANTING REVERSAL OR MODIFICATION, SPECIFYING ANY ERRORS OF LAW OR INFORMATION NOT PREVIOUSLY CONSIDERED. WHEN THE ONLY BASIS FOR RECONSIDERATION CITED BY THE PROTESTER IS AN UNSUPPORTED ALLEGATION OF BAD FAITH ON THE PART OF AGENCY OFFICIALS, THE REQUEST FOR RECONSIDERATION WILL BE DENIED.

MATTER OF: JANKE AND COMPANY, INCORPORATED-- REQUEST FOR RECONSIDERATION, NOVEMBER 13, 1984:

JANKE AND COMPANY, INCORPORATED, REQUESTS RECONSIDERATION OF OUR DECISION IN JANKE AND COMPANY, INC., B-216152, AUG. 30, 1984, 84-2 CPD PARA. 242, DISMISSING JANKE'S PROTEST AGAINST THE DECISION OF THE DEPARTMENT OF THE NAVY TO AWARD A CONTRACT TO THE SMALL BUSINESS ADMINISTRATION (SBA) AND THE PROPOSED AWARD OF A SUBSEQUENT SUBCONTRACT TO JWM CORPORATION PURSUANT TO SECTION 8(A) OF THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 637(A) (1982). WE AFFIRM OUR PRIOR DECISION.

SECTION 8(A) AUTHORIZES THE SBA TO ENTER INTO CONTRACTS WITH ANY GOVERNMENT AGENCY HAVING PROCURING AUTHORITY AND TO ARRANGE FOR PERFORMANCE BY LETTING SUBCONTRACTS TO SOCIALLY AND ECONOMICALLY DISADVANTAGED SMALL BUSINESS CONCERNS.

IN ITS INITIAL PROTEST, JANKE ALLEGED A POSSIBLE FAILURE TO PREPARE AN ADEQUATE ASSESSMENT, AS REQUIRED UNDER SBA'S STANDARD OPERATING PROCEDURES (SOP), OF THE IMPACT ON FIRMS NOT IN THE 8(A) PROGRAM OF RESERVING THE CONTRACT FOR THE PROGRAM. WE HELD THAT BECAUSE SBA'S SOP MERELY PROVIDE INTERNAL POLICIES AND GUIDELINES THAT COMPLEMENT THE SBA REGULATIONS IMPLEMENTING THE 8(A) PROGRAM AT 13 C.F.R. PART 124 (1984), WE WOULD NOT REVIEW SBA'S COMPLIANCE WITH THOSE INTERNAL PROCEDURES ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH. SINCE JANKE FAILED TO ALLEGE FRAUD OR BAD FAITH, WE DISMISSED THE PROTEST.

IN ITS REQUEST FOR RECONSIDERATION, JANKE NOW ALLEGES THAT SBA AND THE NAVY HAVE ACTED IN BAD FAITH IN SETTING ASIDE THE PROCUREMENT FOR THE 8(A) PROGRAM. IN PARTICULAR, JANKE REFERS TO A LETTER FROM SBA IT RECEIVED ON OR ABOUT AUGUST 21, 1984, AND IN WHICH SBA INFORMED JANKE THAT SINCE THE PROCUREMENT WAS CONSIDERED A FIRST-TIME BUY THERE COULD BE NO ADVERSE IMPACT ON JANKE AND THUS THERE WAS NO NEED FOR AN IMPACT STUDY. JANKE CONTRASTS THIS POSITION WITH A JUNE 19 LETTER FROM SBA ASSURING JANKE THAT SBA WOULD CONDUCT AN IMPACT STUDY PRIOR TO ACCEPTING A CONTRACT AND WITH A JULY 19 LETTER FROM THE NAVY ADVISING A MEMBER OF CONGRESS OF THE SBA STATEMENT. JANKE ARGUES THAT THIS VACILLATION IN REGARD TO THE IMPACT STUDY, WHEN CONSIDERED WITH THE ALLEGEDLY UNANNOUNCED AGENCY DECISION TO SET ASIDE THIS PROCUREMENT FOR THE 8(A) PROGRAM EVEN THOUGH IT HAD BEEN PREVIOUSLY SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, DEMONSTRATES BAD FAITH.

WHILE JANKE MAY BELIEVE THAT SBA AND THE NAVY WERE ACTING SOLELY TO DEPRIVE JANKE OF AN OPPORTUNITY TO COMPETE, IT HAS SUBMITTED NO EVIDENCE THAT THIS WAS IN FACT THE CASE. RATHER, IT ESSENTIALLY ASKS THAT WE INFER BAD FAITH FROM THE ACTIONS OF THE SBA AND THE NAVY. HOWEVER, INFERENCE AND SUPPOSITION IS NOT SUFFICIENT. SEE EBONEX, INC., B-213023, MAY 2, 1984, 84-1 CPD PARA. 495 AT 4. CONSEQUENTLY, JANKE'S REQUEST FOR RECONSIDERATION FALLS SHORT OF MAKING THE REQUISITE SHOWING OF POSSIBLE BAD FAITH.

THE REQUEST FOR RECONSIDERATION IS DENIED.

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