United Enterprise & Associates, B-295742, April 4, 2005

B-295742 Apr 04, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights United Enterprise & Associates (UEA) protests its failure to receive a noncompetitive contract under the Small Business Administration's (SBA) section 8(a) program for the Corporation for National & Community Service (CNCS), for facilities support services needed at the AmeriCorp facility in Charleston, South Carolina. We deny the protest. View Decision B-295742, United Enterprise & Associates, April 4, 2005 Decision Matter of: United Enterprise & Associates File: B-295742 Date: April 4, 2005 W. Michael Duncan, Esq., Austin, Lewis & Rogers, for the protester. Andrea S. Grill, Esq., Corporation for National & Community Service, and John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business Administration, for the agencies. John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST In a noncompetitive acquisition under the Small Business Administration's (SBA) section 8(a) program, although SBA, in considering the responsibility of an 8(a) vendor under the certificate of competency procedures, was not following applicable regulations, the protester was not prejudiced because SBA agreed with the procuring agency that the 8(a) vendor was not responsible for this requirement, and it is thus apparent that SBA would not have exercised its right to appeal the agency's determination not to contract with that vendor, which was the only action under applicable regulations that SBA could take to contest the procuring agency's determination here, and the protester has not shown that either agency acted in bad faith. DECISION United Enterprise & Associates (UEA) protests its failure to receive a noncompetitive contract under the Small Business Administration's (SBA) section 8(a) program for the Corporation for National & Community Service (CNCS), for facilities support services needed at the AmeriCorp facility in Charleston, South Carolina. [1] We deny the protest. The required facilities support services were previously performed by a section 8(a) contractor that had received a noncompetitive award. As the incumbent 8(a) contractor would be graduating from the 8(a) program, and the contract was due to expire in November 2004, CNCS, at the suggestion of the incumbent 8(a) contractor, identified UEA as an eligible 8(a) firm that could perform the services. CNCS explains that "[t]aking into consideration [the incumbent contractor's] recommendations, as well as other independent, appropriate procurement and business considerations, [CNCS] was interested in seeing whether UEA would be an appropriate vendor to be awarded the 8(a) contract and continue the work." Contracting Officer's Statement at 2. CNCS thus contacted SBA, seeking authorization to enter into negotiations with UEA. Agency Report (AR), Tab 30, Contracting Officer's Letter to SBA (Apr. 22, 2004). SBA subsequently "authorized [CNCS] to conduct negotiations with [UEA] and sign the contract documents on behalf of the Federal Government." AR, Tab 29, SBA Letter to CNCS (Apr. 28, 2004). CNCS issued a request for proposals (RFP) to UEA on May 10 requesting UEA to respond by June 11. On June 4, UEA submitted a number of written and oral questions regarding the RFP to CNCS, and requested "an extension in submitting [its] proposal" to July 2. The agency responded to UEA's questions, and granted the extension. AR, Tab 7, UEA Letter to Contracting Officer (June 4, 2004); Contracting Officer's Statement at 2. The agency did not receive a proposal from UEA by the July2 due date. The agency subsequently revised the RFP, and invited UEA to submit a proposal in response to the revised RFP by August 6. Contracting Officer's Statement at 2; AR, Tab 10, Revised RFP. UEA submitted its proposal to CNCS on August 9. AR, Tab 11, UEA Proposal. The agency reviewed UEA's proposal, and "noted several serious deficiencies with it, raising substantial concern as to whether UEA would be able to satisfactorily perform the required services." Contracting Officer's Statement at 2-3. After being informally advised by SBA that it was permissible for CNCS to request that SBA replace UEA with another eligible section 8(a) vendor for the possible performance of the services, CNCS, by letter dated November 9, formally advised SBA that CNCS did "not believe that [UEA] would be able to properly fulfill the requirements or terms of the new maintenance contract." AR, Tab 21, Contracting Officer's Letter to SBA, at 1. CNCS also stated in this letter that it "would consider . . . another 8(a) firm" for the performance of the services, and identified a specific 8(a) vendor as a possibility. Id.