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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. 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. WE WILL NOT UNDERTAKE AN INDEPENDENT REVIEW OF A CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION BECAUSE SUCH ACTION. THE PROTEST IS DISMISSED.

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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.

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