BNUMBER:  B-274051
DATE:  November 8, 1996
TITLE:  The Gerard Company

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Matter of:The Gerard Company

File:     B-274051

Date:November 8, 1996

Andrew Jackson Graham, Esq., for the protester.
Marie Adamson Collins, Esq., General Services Administration, for the 
agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency was required to award contract to protester, 
without requesting best and final offers (BAFO), as soon as Small 
Business Administration (SBA) issued certificate of competency (COC) 
concerning the protester is denied.  Although regulation states "the 
contracting officer shall award the contract to the concern in 
question if the SBA issues a COC after receiving the referral," the 
thrust of this provision is simply that the agency cannot deny award 
to the eligible firm on the basis of other responsibility or 
eligibility criteria; the regulation does not mandate an immediate 
award to the firm if the agency has legitimate reasons to amend the 
solicitation and request BAFOs.

DECISION

The Gerard Company protests the failure of the General Services 
Administration (GSA) to award it a contract under request for 
proposals (RFP) No. FCXA-S8-930004-N for marketing and advertising 
services for the Public Buildings Service.

We deny the protest.[1]

GSA issued the RFP on August 29, 1994, and issued six solicitation 
amendments over the next several months.  Proposals were submitted on 
November 16, 1994, but the evaluation of the proposals was not 
completed until January 22, 1996.  During the evaluation, contracting 
officials requested that GSA's Credit and Finance Division perform 
pre-award surveys on several offerors, including Gerard, in order to 
determine the financial capacity of those firms.  GSA explains that 
these requests were premature and should not have occurred until the 
technical evaluation was completed. 

After evaluating the proposals, the contracting officer established a 
competitive range, which included Gerard's proposal.  The agency then 
conducted discussions with the competitive range offerors and 
requested revisions to their price proposals.  Gerard responded to the 
discussions with a submission which included a revised price proposal 
labeled "Best and Final Marketing and Advertising Services."  

On February 9, 1996, GSA's Credit and Finance Division issued a 
recommendation of "no award" concerning Gerard.  The contracting 
officer concluded that Gerard was nonresponsible and, since the firm 
is a small business, in accordance with Federal Acquisition Regulation 
(FAR)  sec.  19.602-1(a)(2) (FAC 90-40), referred the matter to the Small 
Business Administration (SBA) for review under its certificate of 
competency (COC) procedures.  In a June 5 letter, the SBA issued a COC 
concerning Gerard and informed the agency:  "You are obligated to 
award the contract to the certified concern without requiring it to 
meet any other condition of responsibility or eligibility."

At approximately the same time, the contracting officer reviewed the 
solicitation since 2 years had passed since it was issued.  Based on 
that review, on August 1, 1996, the agency issued a seventh RFP 
amendment in order to conform the solicitation to provisions of the 
Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 
103-355, 108 Stat. 3243 (1994), to clarify ambiguities in the 
solicitation and to address agency requirements not included in the 
RFP.  The agency reports that it needed to make these changes to 
ensure satisfaction of the government's minimum needs.  The seventh 
amendment also requested best and final offers (BAFO).[2]

Gerard objects to the request for BAFOs.  According to Gerard, "[t]he 
contract was awarded to Gerard, if no other way, then by operation of 
law governing such an award."  In support of this argument, Gerard 
refers to the SBA's June 5 letter issuing the COC concerning Gerard 
and stating: "You are obligated to award the contract to the certified 
concern without requiring it to meet any other condition of 
responsibility or eligibility."  Gerard argues that its position also 
is supported by FAR  sec.  19.602-4(b), which states:

        "The contracting officer shall award the contract to the 
        concern in question if the SBA issues a COC after receiving 
        the referral.  An SBA-certified concern shall not be required 
        to meet any other requirements of responsibility.  SBA COC's 
        are conclusive with respect to all elements of responsibility 
        of prospective small business contractors."

Apparently, Gerard's position is that, once the COC was issued, based 
on the operation of FAR  sec.  19.602-4(b), Gerard was entitled to the 
award and it was improper for the agency to request BAFOs.

We do not agree.  The language of the regulation quoted above (and the 
language in the letter from the SBA) simply states that once the SBA 
issues a COC, the small business firm is considered responsible and 
the firm cannot be denied award for responsibility reasons.  However, 
this does not mandate an award to the firm if the agency cannot 
immediately make award for other legitimate reasons.  See Go Leasing, 
Inc.; Sierra Pacific Airlines, B-209202; B-209202.2, Apr. 14, 1983, 
83-1 CPD  para.  405 (while the Small Business Act does require an award 
after issuance of a COC without a small business concern having to 
meet any other requirement of responsibility or eligibility, COC 
issuance does not compel the government to make an award under a 
defective solicitation).

Moreover, the fact that proposals had been received and evaluated does 
not mean that the solicitation could not be amended.  It is 
well-settled that an RFP can be amended at any time prior to award.  
See, e.g., FAR  sec.  15.606 (FAC 90-31); PI Constr. Corp., B-270576.2, 
Dec. 15, 1995, 95-2 CPD  para.  270.  In this case, among other things, the 
seventh amendment changed the procedure for issuing task orders under 
the contract, modified the procedure for changing the contractor's 
team leader, and clarified that the scope of the contract was to 
extend to all of GSA, not just the Public Buildings Service.  
Contracting officials determined that these and other changes in 
amendment seven were necessary to satisfy the agency's needs, they 
were not de minimus, and they could significantly affect the 
requirements and interpretation of the solicitation.  Our review 
indicates that changes in the amendment clarified the rights and 
responsibilities of the parties to the contract and changed the 
apportionment of risk between GSA and the contractor.  Other than its 
complaint that the amendment delayed the award, Gerard has not 
suggested any way in which it was prejudiced by any of the changes in 
amendment seven.  Under the circumstances, we have no basis to 
question the agency's decision to amend the solicitation.[3]

The protest is denied

Comptroller General 
of the United States

1. Since award has not been made, our discussion of the proposals and 
the evaluation is necessarily limited.

2. During the period when the evaluation process was delayed, the 
agency requested and received extensions of offers from Gerard and 
other offerors.

3. Although Gerard also challenges GSA's assertion that the request 
for a determination of Gerard's responsibility was "premature," we see 
no reason to address this contention since we do not see how Gerard 
was prejudiced by the timing of the request.