B-217145, JAN 2, 1985, 85-1 CPD 8

B-217145, JAN 2, 1985, 85-1 CPD 8

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: 1. A PROTEST NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN OF THE BASIS FOR PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED. CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - CERTIFICATE OF COMPETENCY - CONCLUSIVENESS 2. GAO WILL NOT REVIEW THE SMALL BUSINESS ADMINISTRATION'S (SBA) REFUSAL TO ISSUE A CERTIFICATE OF COMPETENCY, ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS OR ALLEGATIONS THAT SBA DID NOT FOLLOW ITS OWN REGULATIONS OR DID NOT CONSIDER MATERIAL INFORMATION, SINCE THE SMALL BUSINESS ACT GIVES SBA CONCLUSIVE AUTHORITY TO DETERMINE ALL ELEMENTS OF SMALL BUSINESS RESPONSIBILITY.

JAY FRAN CORPORATION:

JAY FRAN CORPORATION PROTESTS THE REJECTION OF ITS BID BY THE DEPARTMENT OF THE ARMY UNDER SOLICITATION NO. DAAJ10-84-B-A186 FOR H-1 HEATERS. DISMISS THE PROTEST.

THE ARMY FOUND THE PROTESTER NONRESPONSIBLE AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). THE SBA REVIEWED THE MATTER AND DECLINED TO ISSUE A COC BECAUSE IT FOUND THE PROTESTER PLANNED TO SUBCONTRACT ALL MANUFACTURING. JAY FRAN CONTENDS THAT THIS DETERMINATION WAS IMPROPER.

IN ORDER TO BE CONSIDERED, A PROTEST MUST BE FILED WITH THIS OFFICE OR WITH THE CONTRACTING AGENCY WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R SEC. 21.2(B)(2) (1984); SCHLEGEL ASSOCIATES, INC., B-213739, JUNE 28, 1984, 84-1 CPD PARA. 688. BY LETTER OF OCTOBER 2, 1984, THE SBA INFORMED JAY FRAN THAT IT HAD BEEN FOUND INELIGIBLE FOR A COC; THIS PROTEST WAS FILED WITH OUR OFFICE ON NOVEMBER 16. EVEN ASSUMING THAT THE PROTESTER DID NOT RECEIVE THE SBA'S LETTER UNTIL A WEEK AFTER ITS DATE, SUBSTANTIALLY MORE THAN 10 WORKING DAYS ELAPSED BEFORE THE PROTEST WAS FILED, AND IT IS THEREFORE UNTIMELY.

IN ANY EVENT, THE SBA HAS CONCLUSIVE AUTHORITY TO DETERMINE WHETHER A SMALL BUSINESS IS RESPONSIBLE. 15 U.S.C. SEC. 637(B)(7) (1982). OUR OFFICE GENERALLY WILL NOT REVIEW AN SBA DECISION TO ISSUE OR NOT TO ISSUE A COC. 4 C.F.R. SEC. 21.3(G)(3). THE ONLY EXCEPTIONS TO THIS RULE-- APPLICABLE BOTH TO ACTUAL DETERMINATIONS OF RESPONSIBILITY AND TO INELIGIBILITY UNDER SBA'S RULES-- ARE WHEN THERE IS A SHOWING THAT THE SBA'S REFUSAL STEMMED FROM FRAUD OR BAD FAITH OR WHEN IT IS ALLEGED THAT THE SBA DID NOT FOLLOW ITS OWN REGULATIONS OR DID NOT CONSIDER MATERIAL INFORMATION. INTERTWINE, INC.; B-215314, JULY 17, 1984, 84-2 CPD PARA. 59; ART'S SUPPLIES AND SERVICES-- RECONSIDERATION, B-210156.2, SEPT. 23, 1983, 83-2 CPD PARA. 365.

ALTHOUGH JAY FRAN CONTENDS THAT THE AGENCY OFFICIALS WHO FOUND IT NONRESPONSIBLE ARE INVOLVED IN SOME FORM OF BID RIGGING OR CORRUPTION, WE DO NOT CONSIDER THIS SUFFICIENT TO SHOW THAT THE SBA'S REFUSAL TO ISSUE A COC STEMMED FROM BAD FAITH OR FRAUD. THE SBA MADE AN INDEPENDENT DETERMINATION THAT JAY FRAN WOULD NOT MEET THE SBA'S REGULATORY REQUIREMENT THAT IT PERFORM A SIGNIFICANT PORTION OF THE WORK. SEE 13 C.F.R. SEC. 125.5(B) (1984). ACCORDINGLY, IT APPEARS THAT THE COC DENIAL RESULTED FROM THE SBA'S OWN REVIEW OF THE SITUATION AND NOT FROM ANY IMPROPER CONDUCT ON THE PART OF THE AGENCY. SEE SERMOR INC., B-210872, JULY 13, 1983, 83-2 CPD PARA. 87.

THE PETITIONER ALSO CONTENDS THAT THE COMPANY WHICH WAS AWARDED THIS CONTRACT IS AND HAS BEEN LATE IN PERFORMING OTHER GOVERNMENT CONTRACT AND THEREFORE SHOULD NOT HAVE BEEN AWARDED THE CONTRACT. WE POINT OUT THAT RECENT UNSATISFACTORY PERFORMANCE, HOWEVER, DOES NOT AUTOMATICALLY REQUIRE A DETERMINATION THAT A BIDDER IS NONRESPONSIBLE. GAVCO CORP.-- REQUEST FOR RECONSIDERATION. B-207846.2, SEPT. 20, 1982, 82-2 CPD PARA. 242. JAY FRAN DOES NOT INDICATE HOW OR WHY THE PRIOR DELINQUENCIES OCCURRED OR WHETHER THE SAME CAUSE IS PRESENT IN THIS PROCUREMENT. ABSENT THAT INFORMATION, THE PROTESTER HAS NOT MET ITS BURDEN OF MAKING A PRIMA FACIE SHOWING THAT THE CONTRACTING OFFICER ACTED FRAUDULENTLY OR IN BAD FAITH WHEN HE FOUND THE OTHER FIRM RESPONSIBLE. ID. IN THE ABSENCE OF SUCH A SHOWING, THIS OFFICE WILL NOT REVIEW THE MATTER FURTHER. 4 C.F.R. SEC. 21.3(G)(4).

ADDITIONALLY, TO THE EXTENT JAY FRAN'S ASSERTIONS INVOLVE ALLEGED CRIMINAL ACTIVITY THEY SHOULD BE REFERRED BY THE PROTESTER TO THE DEPARTMENT OF JUSTICE. RELIABILITY SCIENCES, INC., B-212852, MAY 2, 1984, 84-1 CPD PARA. 493.

THE PROTEST IS DISMISSED.