TITLE: Specialty Marine, Inc.--Reconsideration, B-292053.2, July 29, 2003
BNUMBER: B-292053.2
DATE: July 29, 2003
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Specialty Marine, Inc.--Reconsideration, B-292053.2, July 29, 2003
Decision
Matter of: Specialty Marine, Inc.--Reconsideration
File: B-292053.2
Date: July 29, 2003
Robert Korroch, Esq., Williams Mullen, for the protester.
Jeanne W. Isrin, Esq., and Jerold D. Cohen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
The Small Business Administration (SBA), in commenting on a protest
alleging that an agency had improperly rejected the protester's quotation
because the firm did not hold an Agreement for Boat Repair, advised that
it did not consider the matter a responsibility one subject to the
certificate of competency (COC) process; as a result, GAO, while observing
that the requirement appeared to involve a definitive responsibility
criterion, addressed the merits of the agency's action and denied the
protest. The fact that the SBA, in a post-decision submission, attributes
its prior position to its understanding of GAO precedent and states that
it would have considered the protester for a COC if GAO had sustained the
protest, does not warrant reconsideration of the decision, since the
decision properly was based on the protest record.
DECISION
Specialty Marine, Inc. requests that we reconsider our decision in
Specialty
Marine, Inc., B-292053, May 19, 2003, 2003 CPD P: 106, denying Specialty's
protest
of the award of a contract to AEPCO under request for quotations (RFQ)
No. N2105130275001, issued by the Military Sealift Command, Department of
the Navy, for pre-deployment maintenance and repair of the USNS MOHAWK.
We deny the request.
The synopsis for the requirement, which was posted at the Government Point
of Entry on the Internet, specified that the requirement was open only to
holders of an Agreement for Boat Repair (ABR).[1] Following the receipt
of quotations, the agency awarded a contract to AEPCO, and notified
Specialty that its quotation was not considered because Specialty did not
hold and was not seeking an ABR. Specialty's principal argument, and the
only one involved in this reconsideration request, was that the Navy's
rejection of Specialty's quotation amounted to a finding of
nonresponsibility, and that the Navy improperly failed to refer it to the
Small Business Administration (SBA) for review under its certificate of
competency (COC) procedures.[2]
The Navy and the SBA (whose views we sought) maintained that the ABR
requirement was not a responsibility matter, but instead involved
prequalification, such that vendors were required to hold or to have
applied for an ABR in order to be eligible for award, pursuant to our
decision in Stevens Tech. Servs., Inc., B-250515.2 et al., May 17, 1993,
93-1 CPD P: 385; there, we indicated that an offeror was not eligible to
receive an award where it did not hold, and had not applied for, a
required ABR. Id. at 3-4 n.4. In our decision of May 19, however, we
noted that, Stevens and the agencies' views notwithstanding, the ABR
requirement had all the principal characteristics of a definitive
responsibility criterion: a specific and objective standard set out as a
precondition to award, designed to measure a prospective contractor's
ability to perform the contract.[3] We stated:
It is not clear--and neither agency explains--why a firm's failure to
apply for an ABR should change the essential nature of a requirement from
one concerning responsibility.
We stopped short of deciding whether the ABR requirement was a definitive
responsibility criterion, however, in light of the SBA's view that it was
not a responsibility matter subject to the COC process. Since referral to
the SBA under that process would be pointless in view of the SBA's
position, we elected to follow our long-held practice of reviewing agency
determinations that the SBA declines to review. See Wallace & Wallace,
Inc.; Wallace & Wallace Fuel Oil, Inc.--Recon., B‑209859.2,
B-209860.2, July 29, 1983, 83-2 CPD P: 142 at 2. Looking at the merits,
we found that because the ABR was required and Specialty did not hold and
had not applied for an ABR, the firm's quotation was rightfully rejected
whether or not the requirement was a definitive responsibility criterion.
Specialty's reconsideration request is based on the view expressed in a
letter that the SBA sent to our Office after we issued our decision (and
in response to the decision). In that letter, the SBA stated that it had
not intended for its submission to our Office during the pendency of the
protest to be read as a declination to review the rejection of Specialty's
quotation under the COC process if we had declared the ABR requirement a
definitive responsibility criterion for referral. Instead, the SBA's
post-decision letter stated that the SBA's view expressed during the
protest proceedings merely reflected the SBA's understanding of our
Office's precedent, and that, if our Office had found that a negative
responsibility determination occurred here, the SBA would have considered
Specialty for a possible COC. Specialty argues that in light of our
analysis of the issue, and since the SBA has now stated that it will
consider the matter if referred, we should sustain the protest and *issue
an affirmative recommendation to the [Navy] that they refer the matter to
the SBA to consider [Specialty] for a possible COC.*
Under our Bid Protest Regulations, to obtain reconsideration the
requesting party must show that our prior decision contains either errors
of fact or law or present information not previously considered that
warrants reversal or modification of our decision. 4 C.F.R. S: 21.14(a);
Eastman Kodak Co.--Recon., B-271009.2, Oct. 7, 1996, 96-2 CPD P: 136 at 3.
We will not reconsider our decision. The SBA, in commenting on the
protest, was clear in its view: *We agree with the Navy that its
rejection of [Specialty's] offer did not constitute a responsibility
determination which necessitated referral to SBA for a possible COC.* On
that basis, we reached the only logical conclusion possible: the SBA
would decline jurisdiction if the issue were referred to it under the COC
process. To the extent that the SBA now proffers a different opinion, we
point out that the goal of our bid protest forum is to produce fair and
equitable decisions based on consideration of the arguments presented in a
fully developed record.[4] Ford Contracting Co.--Recon., B-248007.3,
B-248007.4, Feb. 2, 1993, 93-1 CPD P: 90 at 2-3. There was nothing
improper in the factual and legal conclusions we reached on the protest
record as developed in the matter.[5]
Moreover, our ultimate holding in the protest was that since an ABR was
required, and since Specialty did not hold or apply for one, the Navy
properly rejected the firm's quotation. Neither Specialty nor the SBA has
shown that we were wrong in that determination.
The request for reconsideration is denied.
Anthony H. Gamboa
General Counsel
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[1] The Navy maintains a qualification program under which ship repair
contractors enter into advance agreements that establish that the
contractor has a specified level of ship repair capability, and contains
certain clauses and conditions applicable to contracts issued under the
agreements. An ABR is one such agreement.
[2] Specialty also argued that (1) the ABR requirement was not stated in
the solicitation, and Specialty's quote therefore was erroneously rejected
for failing to meet an unstated requirement, and (2) the ABR requirement
was unnecessary, and therefore unduly restrictive of competition. We
dismissed the former, concluding that stating the ABR requirement in the
synopsis was sufficient to constitute a requirement that offerors had to
meet, and to give Specialty notice of it. The latter was dismissed as
untimely since it involved a solicitation impropriety, but was not
protested until after the closing date for the receipt of quotations. Bid
Protest Regulations, 4 C.F.R. S: 21.2(a)(1) (2003).
[3] NAVSEA Instruction 4280.2C details the requirements for ABR holders,
which focus on management, production organization, and
facilities--typical responsibility concerns. See Federal Acquisition
Regulation S: 9.104.
[4] For that reason, we consistently have held that we will not reconsider
a decision where a party to a protest fails to assert all possible
arguments or provide all information available, and then subsequently
attempts to do so on reconsideration. See, e.g., The Dep't of the
Army--Recon., B-237742.2, June 11, 1990, 90-1 CPD P: 546.
[5] Even in its post-decision letter, the SBA stated (quite apart from its
reliance on its understanding of our Office's precedent) that the SBA
*fail[s] to see how the ABR requirement could constitute definitive
responsibility criteria* and that allowing referral to the SBA whenever a
small business lacks an ABR would render the ABR program *meaningless.*
As we did in our initial decision in this matter, we continue to leave
open the question of whether an ABR requirement is, in fact, a definitive
responsibility criterion. If that question is presented in a future
protest, we will solicit and give appropriate weight to the view of the
SBA, as we did in this case, recognizing that the SBA's view at that time
may be different from the one expressed during the pendency of Specialty's
protest.