American Southwest Electric

B-416918 Dec 20, 2018 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights James F. Thomson, Jr., doing business as American Southwest Electric (ASE), of Las Vegas, Nevada, protests the award of a contract to Ames Construction, Inc., of Aurora, Colorado, under invitation for bids (IFB) No. W9128F18B0006, issued by the Department of the Army, Corps of Engineers (Corps), Omaha District, for the construction of a replacement irrigation diversion weir and fish bypass channel. The protester argues that the Corps improperly awarded the contract before time had expired for the Small Business Administration (SBA) to issue a certificate of competency (COC) to ASE. We deny the protest. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: James F. Thomson, Jr., DBA American Southwest Electric File: B-416918 Date: December 20, 2018 Scott R. Sleight, Esq., Ahlers Cressman & Sleight PLLC, for the protester. Tristan Brown, Esq., Thomas Tracy, Esq., and Stanley E. Tracey, Esq., Department of the Army, for the agency. Heather Weiner, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that the contracting officer improperly failed to withhold award for 15 business days following the referral of a nonresponsibility determination to the Small Business Administration (SBA) under its certificate of competency (COC) procedure is denied where the record reflects that the SBA did not respond to the contracting officer with a COC determination within 15 business days. 2. Protest that the contracting officer improperly denied a request by the Small Business Administration for additional time to consider issuing a certificate of competency is denied where the protester has not shown that the contracting officer's action was the result of fraud or bad faith. DECISION James F. Thomson, Jr., doing business as American Southwest Electric (ASE), of Las Vegas, Nevada, protests the award of a contract to Ames Construction, Inc., of Aurora, Colorado, under invitation for bids (IFB) No. W9128F18B0006, issued by the Department of the Army, Corps of Engineers (Corps), Omaha District, for the construction of a replacement irrigation diversion weir and fish bypass channel. The protester argues that the Corps improperly awarded the contract before time had expired for the Small Business Administration (SBA) to issue a certificate of competency (COC) to ASE. We deny the protest. BACKGROUND The agency issued the solicitation on July 17, 2018. Bids were due on August 23. The agency received six bids. The lowest-priced bid was submitted by a large business, Ames Construction, in the amount of $34,776,560. The second lowest-priced bid was submitted by ASE, a Historically Underutilized Business Zone (HUBZone) small business concern, in the amount of $35,325,325. On August 24, ASE notified the contracting officer that it bid with the intent that the HUBZone price preference contained in the solicitation--Federal Acquisition Regulation (FAR) clause 52.219-4 (Notice of Price Evaluation Preference for HUBZone Small Business Concerns)--would be applied. After application of the HUBZone preference, ASE was evaluated as having the lowest-priced bid. However, the contracting officer, determined that ASE was non-responsible to perform under the requirements of the solicitation. Specifically, the contracting officer concluded that "James F. Thomson, Jr. (sole proprietor) cannot perform the requirements in accordance with the contract terms" because "he cannot self-perform 15%, nor will HUBZone concerns complete 50% of contract cost for personnel as required by FAR Clause 52.219-4." Agency Report (AR), Tab 17a, Non-Responsibility Determination, at 5. In addition, "he does not have sufficient bonding capacity, equipment, or tradecraft to perform this contract and must rely extensively on large business for these resources." Id. Consequently, the contracting officer determined ASE to be "non-responsible under the terms of this solicitation only." Id. Since ASE is a small business, on August 30, 2018, the contracting officer referred his determination of non-responsibility to SBA for that agency's review under its Certificate of Competency procedures. See FAR § 19.602-1(a). The contracting officer sent the referral to the SBA Area Office in two boxes via Federal Express, priority overnight mail. The proof of delivery information for the shipment indicates that it was signed and dated as being received on September 4, 2018. AR, Tab 16, Delivery Confirmation, at 1-2. As relevant here, the COC referral letter advised that "[a]ward of this contract is needed by fiscal year end so any time savings are appreciated." AR, Tab 17, COC Referral (Aug.