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.