B-217046, NOV 26, 1984, 84-2 CPD 573
Highlights
IS A MATTER FOR THE CONTRACTING AGENCY AND THE SMALL BUSINESS ADMINISTRATION AND. WILL NOT BE REVIEWED BY GAO ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS TO FOLLOW APPLICABLE REGULATIONS. FORWAY STATES THAT IT IS A PRIOR PRODUCER OF THE TORPEDO NOSE PIECES BEING PROCURED AND. IT SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO COMPETE FOR THIS REQUIREMENT. A GOVERNMENT CONTRACTING OFFICER IS GIVEN THE DISCRETION TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS AGREED TO BY THE AGENCY AND THE SBA. OUR REVIEW OF ACTIONS UNDER THE 8(A) PROGRAM GENERALLY IS LIMITED TO DETERMINING WHETHER THE REGULATIONS HAVE BEEN FOLLOWED AND WHETHER THERE HAS BEEN POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS.
B-217046, NOV 26, 1984, 84-2 CPD 573
SMALL BUSINESS ADMINISTRATION - AUTHORITY - SMALL BUSINESS CONCERNS - SET -ASIDE DETERMINATIONS DIGEST: THE DETERMINATION TO SET ASIDE A PROCUREMENT UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT, AS WELL AS THE PROPRIETY OF THE 8(A) AWARD ITSELF, IS A MATTER FOR THE CONTRACTING AGENCY AND THE SMALL BUSINESS ADMINISTRATION AND, THEREFORE, WILL NOT BE REVIEWED BY GAO ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS TO FOLLOW APPLICABLE REGULATIONS.
FORWAY INDUSTRIES:
FORWAY INDUSTRIES (FORWAY) PROTESTS THE NAVY SHIPS PARTS CONTROL CENTER'S DECISION TO SET ASIDE SOLICITATION NO. N00104-83-R-TG31 UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT, 15 U.S.C. SEC. 637(A) (1982). FORWAY STATES THAT IT IS A PRIOR PRODUCER OF THE TORPEDO NOSE PIECES BEING PROCURED AND, AS SUCH, IT SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO COMPETE FOR THIS REQUIREMENT.
WE DISMISS THE PROTEST.
SECTION 8(A) AUTHORIZES THE SMALL BUSINESS ADMINISTRATION (SBA) TO ENTER INTO CONTRACTS WITH GOVERNMENT AGENCIES AND TO ARRANGE FOR THE PERFORMANCE OF SUCH CONTRACTS BY LETTING SUBCONTRACTS TO SOCIALLY AND ECONOMICALLY DISADVANTAGED SMALL BUSINESS CONCERNS. BY THE TERMS OF THAT ACT, A GOVERNMENT CONTRACTING OFFICER IS GIVEN THE DISCRETION TO LET THE CONTRACT TO SBA UPON SUCH TERMS AND CONDITIONS AS AGREED TO BY THE AGENCY AND THE SBA. BECAUSE OF THE BROAD DISCRETION AFFORDED THE SBA AND THE CONTRACTING AGENCIES UNDER THE APPLICABLE STATUTE AND REGULATIONS, OUR REVIEW OF ACTIONS UNDER THE 8(A) PROGRAM GENERALLY IS LIMITED TO DETERMINING WHETHER THE REGULATIONS HAVE BEEN FOLLOWED AND WHETHER THERE HAS BEEN POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS. GRAPHIC INDUSTRIES ASSOCIATION, B-211940, NOV. 21, 1983, 83-2 CPD PARA. 600, CITING ARAWAK CONSULTING CORPORATION, 59 COMP.GEN. 522 (1980), 80-1 CPD PARA. 404.
FORWAY DOES NOT ALLEGE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS OR OTHERWISE CONTEND THAT SPECIFIC REGULATIONS HAVE NOT BEEN FOLLOWED. THUS, THE PROTESTER HAS NOT MADE THE REQUISITE SHOWING HERE TO WARRANT OUR DETAILED REVIEW OF THE MATTER.
THE PROTEST IS DISMISSED.