Thursday, January 17, 2019

Certificate of Competency

Small businesses that have been excluded from consideration on a procurement because they did not meet certain specified evaluation criteria (such as past performance) may have be able to have the Government take a second look at a contracting officer's determination.

Under the Small Business Administration's (SBA) Certificate of Competency (COC) program, contracting officers must refer to the SBA a determination that a small business is not responsible, if that determination would preclude the small business from receiving an award (see FAR 19.6). Additionally, the SBA's regulations specifically require a contracting officer to refer a small business concern to SBA for a COC determination when the contracting officer has refused to consider a small business concern for award of a contract or order after evaluating the concern's offer on a non-comparative basis (e.g. pass/fail, go/no go, or acceptable/unacceptable) under one or more responsibility-type evaluation factors (such as experience of the company or key personnel or past performance).

Once the referral is made to the SBA by a contracting officer, SBA will notify the (prospective) vendor accordingly and offer them the opportunity to submit a COC application. If the vendor chooses to submit a COC application, SBA will perform an independent review of the application (including review of any additional information that was not requested but which the vendor considers pertinent to the determination) and make a determination.

The Small Business Act gives the SBA the conclusive authority to review a contracting officer's determination that a small business concern is not responsible. If the SBA refuses to issue a COC, it is unlikely that the GAO will review the SBA determination unless there is shown to be possible bad faith on the part of Government officials or that SBA failed to follow its own published regulations or failed to consider vital information bearing on the firm's responsibility due to the manner in which the information was presented to or withheld from the SBA by the contracting officer.

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