A. Analogy to COC regulations. Marwais notes that the GAO will review some SBA determinations when the procuring agency fails to forward "vital information" to the SBA. See American Industrial Contractors, Inc., B-236410.2, Dec. 15, 1989, 89-2 Comp. Gen. Proc. Dec. P557; COSTAR, B-240980, Dec. 20, 1990, 90-2 Comp. Gen. Proc. Dec. P509; Joanell Laboratories, Inc., B-242415.16, Mar. 5, 1993, 93-1 Comp. Gen. Proc. Dec. P207; RBE, Inc., B-252635, July 16, 1993, 93-2 Comp. Gen. Proc. Dec. P27. However, there are at least two reasons why these cases are inapposite.
First, the cited cases do not involve SBA size determinations. Instead, they deal with SBA awards of Certificates of Competency (COCs), which state that an offeror is "responsible" within the meaning of the Federal Acquisition Regulations. FAR § 19.601 et seq. The SBA's authority to conduct size determinations is based on a different set of regulatory provisions. FAR § 19.301 et seq.
The COC regulations impose a far heavier forwarding burden on the contracting officer than that imposed by the size determination regulations. In fact, the COC provisions explicitly require that preaward surveys, along with other enumerated items and "any other pertinent information" be forwarded in COC matters. FAR § 19.602-1(c)(2). By contrast, the regulation governing size determinations states only that the procuring agency must forward the "protest" itself. FAR § 19.302(c)(1). Therefore, Marwais cannot rely upon COC cases to define the responsibilities of the contracting officer in size determinations, since the two inquiries have distinct regulatory requirements.
The SBA's own regulations, which are independent of the FAR, further defeat Marwais's claim. Those regulations list the pieces of information that a procuring agency must forward to the SBA for a size determination, and the list does not include preaward surveys or cost data.
In fact, the SBA regulations state that "the size determination shall be based primarily on facts and allegations supplied by the protestor and protested concern," suggesting that information provided by the procuring agency is not crucial. 13 C.F.R. § 121.1606(c). If the bidders do not provide sufficient information, the SBA "may make inquiries including requests to the [bidders] or other persons for additional specific information." Id. Presumably, the SBA could use this provision to request preaward surveys or cost data from the procuring agency. In any case, neither the FAR nor the SBA's own regulations impose a duty upon the contracting officer to forward preaward surveys or cost data. Discretion to develop the factual record is seated with the SBA itself, which can conduct its own fact-finding inquiries.
It is true that a COC inquiry is broad and encompasses all issues that would be addressed in a size determination. FAR § 9.104-1(g) (requiring compliance with all applicable statutes, thereby including the Small Business Act). However, simply because the COC regulations require the submission of preaward surveys does not mean that a similar requirement applies to the narrower size inquiry. The language and structure of the regulations discussed above shows that the forwarding requirements imposed on the contracting officer in a COC determination should not be imported into a size determination.
Even if the analogy to the COC provisions were somehow sound, there is a second reason why the cases Marwais cites are inapposite. They do not require the contracting officer to forward information about the bidders. Rather, three of the cases require procuring agencies to provide better information about the agencies' own contract specifications. See American Industrial Contractors, Inc., supra, (agency did not make clear that only some of eight bid alternatives would be awarded); COSTAR, supra, (agency did not state when bidders' quality assurance programs required to be operative); RBE, Inc., supra, (agency provided contradictory definitions of mandatory performance period). At most, these cases suggest that the agency must take great pains to forward all relevant information about its own role in the procurement -- the contract specifications -- to the SBA. There is no reason to extend the logic of these cases to require agencies to identify all relevant bidder information and forward it to the SBA, since the SBA's own regulations suggest that the key data should be provided by the bidders or requested by the SBA itself. 13 C.F.R. § 121.1606(c).
In the other case that Marwais cites, Joanell, supra, the protestor alleged only that the SBA did not consider all of the information before it, and not that the procuring agency withheld information from the SBA. Since Joanell did not scrutinize the procuring agency's role at all, it provides even less support for Marwais's claim against the Air Force than the above three cases.
B. Contracting Officer's duty to file own protest. Marwais's other argument that Air Force had a duty to submit the survey and cost data is based upon a decision of the Comptroller General stating that
if information is brought to the attention of the Contracting Officer . . . which reasonably would impeach the self-certification of the bidder, the Contracting Officer must file a direct protest with the SBA in order to assure that the self-certification process is not being abused.
Keco Industries, Inc., 56 Comp. Gen. 878 (1977). This case is not sufficiently on point. In Keco, no disappointed bidder had filed a preaward size protest. Therefore, the contract was awarded without an SBA review of the successful bidder's self-certification. To remedy this situation, the Comptroller General required only that the contracting officer file a protest, and did not require that particular information be forwarded to the SBA.
Here, by contrast, Marwais had filed a preaward protest, and the SBA therefore had an opportunity to use its powers of inquiry and acquire necessary information about EASI. The complete absence of review of self-certification that existed in Keco does not exist here. The SBA may have been less than thorough in soliciting information about EASI, but the Air Force did not violate any duty set forth by the Comptroller General, since it did not need to play the role of protestor of last resort required by the facts in Keco.
Marwais cites other cases to support this argument, but in each one there was no valid preaward protest filed by a disappointed bidder. See Robertson and Penn, Inc., 65 Comp. Gen. 874 (1986) (bidder's protest untimely); Putnam Mills, 61 Comp. Gen. 667 (1982) (same); Foam-Flex, Inc., 62 Comp. Gen. 300 (1983) (bidder's protest insufficiently specific to be forwarded to SBA); Fiber-Lam, Inc., 69 Comp. Gen. 365 (1990) (bidder did not file preaward protest); Creativision, Inc., 66 Comp. Gen. 585 (1987) (same). Like Keco, these cases require only that the contracting officer step in and file a protest if one is not already before the SBA. Marwais cannot succeed in using these cases to suggest that the Air Force acted improperly by simply withholding some information after Marwais filed a timely preaward protest.
C. Conclusion. No statute or regulation required the Air Force to forward the survey and cost data to the SBA, and the GAO decisions cited by Marwais do not create such a duty. In fact, discretion to develop the factual record in size determinations is seated with the SBA itself, because the SBA is authorized to make its own inquiries in order to acquire more information. Therefore, the Air Force did not abuse its discretion or act arbitrarily, capriciously, or otherwise not in accordance with the law by withholding the preaward survey and cost data.
B. Count Two
Marwais also claims that the Air Force improperly awarded the contract to EASI, alleging that it failed to inquire adequately into EASI's fitness in three areas. First, Marwais states that the Air Force violated provisions of the FAR and Department of Labor regulations by failing to conduct a Walsh-Healey eligibility determination before awarding the contract. Second, Marwais suggests that the Air Force failed to scrutinize EASI's compliance with statutory subcontracting limitations before the award. Finally, Marwais claims that the Air Force failed to consider fully whether EASI was a "responsible" contractor within the meaning of the FAR.
A. Walsh-Healey Determination. A procuring agency may not rely upon a bidder's self-certification of Walsh-Healey eligibility when any of the following circumstances exist:
(1) The contracting officer has knowledge that raises the question of the validity of the representation.
(2) A preaward protest has been lodged.