B-232256, B-232257, Oct 11, 1988, 88-2 CPD 339

B-232256, B-232257, Oct 11, 1988, 88-2 CPD 339

PROCUREMENT - Bid Protests - Moot allegation - GAO review DIGEST: Where contracting officer's rejection of low small bidder as nonresponsible without referring matter to Small Business Administration for certificate of competency consideration is cured by subsequent referral to SBA, protest is moot and need not be considered, as SBA has conclusive authority to determine matters of small business' responsibility.

VNJ Janitorial Services:

VNJ Janitorial Services (VNJ), a small business and the low bidder under two small purchase solicitations, numbers WPBEE 88-001 and WPBEE 88-002, issued by the General Services Administration (GSA) for cleaning services at two GSA office sites, protests its rejection as nonresponsible. Contracts under the solicitations were awarded to the second low bidders, Scrupples Janitorial Services and A&J Janitorial Services, on July 21, 1988.

GSA concedes that the contracting officer improperly failed to refer the nonresponsibility determination to the Small Business Administration (SBA) for consideration under its certificate of competency (COC) program, as required by the Small Business Act, 15 U.S.C. Sec. 637(b)(7) (1982). However, GSA advises that in response to the protest the required referral has now been made. GSA states that since VNJ's protests were not filed in our Office within 10 days of contract award, it has not suspended performance of the contracts. GSA also adds that continued performance of the services are necessary for the health and safety of those employees at the buildings in question. GSA further states that if the SBA issues a certificate of competency to VNJ, then GSA will terminate the contracts with Scrupples Janitorial Services and A J Janitorial Services and award the remainder of these contracts to VNJ.

The SBA, not our Office, has the statutory authority to review a contracting officer's finding of nonresponsibility and then to determine conclusively a small business concern's responsibility by issuing or refusing to issue a COC. 15 U.S.C. Sec. 637(b) (1982); Federal Acquisition Regulation (FAR) Sec. 19.6 (FAC 84-31). The contracting officer apparently was unaware that the small purchase exemption from the requirement for referral of nonresponsibility determinations to SBA had been eliminated from the procurement regulations by virtue of section 401 of the Small Business and Federal Procurement Competition Enhancement Act of 1984. See FAR Sec. 19.602-1 (FAC 84-31). By its referral of VNJ's responsibility to SBA subsequent to VNJ's protest, however, GSA has cured the impropriety. We have held that where a contracting officer's improper rejection of a low small business bidder as nonresponsible without referring the matter to SBA for COC consideration is cured by subsequent referral to SBA, the protest is moot and need not be considered. See Building Maintenance Specialists, B-220966, Jan. 14, 1986, 86-1 CPD Para. 39; Horne Health Care, Inc., B-194925, July 12, 1979, 79-2 CPD Para. 29. The protest therefore is dismissed.