OPINION AND ORDER
This post-award bid protest action comes before the court on cross motions for judgment on the administrative record. Plaintiff, United Enterprise & Associates (UEA), protests the decision of defendant, acting through the Corporation for National and Community Service (CNCS or the agency), to award a contract to Randolph Technology, Inc. (Randolph), for facility support services. See Complaint (Compl.) UK 3-4,247.
In its Motion, filed on July 13, 2005, plaintiff requests that the court terminate the agency’s award to Randolph and direct the agency to award the contract to UEA or, alternatively, to “remand the matter back to a new independent contracting officer of the [ajgency to conduct a proper responsibility determination of UEA and[,] if found responsible, award the contract to UEA, award attorney[’]s fees and bid and proposal expenses and any such other relief the [cjourt deems proper.” Pl.’s Mot. at 1. Defendant opposes plaintiff’s Motion, and “further requests the [cjourt to grant judgment upon the administrative record in favor of the United States, dismissing this action.” Def.’s Mot. at 1. For the following reasons, plaintiff’s Motion is DENIED and defendant’s Cross Motion is GRANTED. Plaintiff’s protest is therefore DISMISSED.
I. Background
A Pre-Proposal Activities
In April of 2000, CNCS awarded a contract for facilities support services to G.S. Tech, Inc. (GS Tech) for a base period that ended November 30, 2000, with four option years (April 2000 contract). Def.’s SOF H10.
*4 whenever it determines such action is necessary or appropriate—
(A) to enter into contracts with the United States Government and any department, agency, or officer thereof ... [and]
(B) to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns.
15 U.S.C. § 637(a)(1)(A) and (B) (2000); see Def.’s Mot. at 3-4.
In March of 2002, GS Tech graduated from the 8(a) Program,
On March 17, 2004, the SBA advised CNCS that two 8(a) vendors—UEA and Randolph—had “expressed interest” in the follow-on contract that was to begin December 1, 2004. Id. ¶ 15 (quoting AR at 630). At that time, CNCS was interested in awarding the contract to UEA, apparently because UEA had been recommended by GS Tech, id. U16, and because of a potential relationship between GS Tech, a contractor with whom CNCS had been satisfied, and UEA,
On April 22, 2004, CNCS requested approval from the SBA to negotiate with UEA as a prospective contractor for an 8(a) sole source award.
On May 10, 2004, CNCS issued to UEA Solicitation No. HQMBS0402 (Solicitation), a non-competitive request for proposal (RFP) with an attached Statement of Work (SOW). AR at 166-267; see also 48 C.F.R. § 2.101 (“Solicitation means any request to submit offers or quotations to the Government.”). The Solicitation was for facilities support services at the NCCC Southeast Campus, to commence December 1, 2004, for one base year, and up to four one-year option periods thereafter. AR at 166; Def.’s SOF 1! 21. The RFP stated that UEA is “invited to submit a proposal based on the attached Statement of Work (SOW) for facilities support services, including operation, maintenance repair, alteration, and other miscellaneous services as needed by the [NCCC] Southeast Campus located in Charleston, South Carolina of ... [CNCS].” AR at 166; Def.’s SOF 1123. The RFP set forth the items required to be in the proposal and stated that the “proposal should be submitted to [NCCC] no lаter than June 11, 2004.” AR 166; Def.’s SOF H 25.
In early June, 2004, Joe Boyd, UEA president and sole owner, and Richard Furnish, GS Tech’s then-Project Manager for the April 2000 contract, went to the NCCC Southeast Regional Campus offices to discuss with CNCS the contract to begin December 1, 2004. Def.’s SOF HH 31-33. Although the parties disagree about exactly what was said at this meeting, compare Def.’s SOF HIT 33-37 with PL’s CSOF at 7-8, it apparently involved discussions of a potential “partnership” between the incumbent contractor GS Tech and UEA for the contract at issue, see Def.’s SOF ¶ 33, 37. After this meeting, on June 4, 2004, Mr. Boyd sent to the agency a list of questions regarding the RFP, see AR at 268-69, and asked for an extension of time,
Instead, on July 8, 2004, NCCC Resource Manager Dot White sent an internal memorandum to NCCC Contract Specialist Mari-lyne Brooks requesting an extension of the deadline to accommodate revisions that were to be made to the SOW. AR at 271; PL’s SOF H 51. Thereafter, the agency revised the RFP and, on July 27, 2004, invited UEA to submit a proposal in response to the revised RFP, consisting of:
a. A technical proposal ... which summarizes how the requirements in the SOW will be accomplished.
b. A cost proposal ... which shall include the information required by the attached ... Instruction for Submitting Cost/Price Proposals When Cost or Pricing Data Are Required.
c. Section K—Representations, Certifications, and Other Statements of Offer-ors or Quoters.
AR at 273. Furthermore, the RFP stated that UEA’s “cost proposal should reflect the labor categories and rates necessary to accomplish the tasks listed in the SOW[,] and all other direct costs if applicable shall be shown for each year of the contract period of performance.” Id. The SOW described in detail the work to be performed and provided six annexes and two attachments, id. at 350-63, which separated the various requirements into comprehensive components of the contracting activity, id. at 273-363. UEA’s proposal was to be submitted “ no later than ... August 6, 2004.” Id. at 273. UEA, however, did not submit its proposal until August 10, 2004. Id. at 365.
B. UEA’s Proposal
UEA’s proposal consisted of two parts. The first part was titled ‘Volume I” and addressed technical, management, and financial issues. AR at 365-386; see Def.’s SOF H 40. The second part was titled “Section B” and was a cost proposal. AR at 387-443; see Def.’s SOF H 41. Volume I did not address specifically a number of the requirements listed in detail in the RFP or SOW, and appears to the court to be laid out in very generalized and boilerplate terms. See, e.g., AR at 365-86. Indeed, none of the annexes provided for in the SOW are specifically referred to in Volume I of the proposal, nor is there a summary of how the specific “requirements in the SOW will be accomplished.” Id. at 273(RFP); see generally id. at 365-86; see Transcript of Oral Argument (Tr.) at 42:15^3:17.
In the “Manаgement Plan” section of Volume I of the proposal, UEA stated that it had “selected [GS Tech] as its primary subcontractor for this program.” AR at 366. The proposal did not specify or propose the division of labor envisioned by UEA, but stated that “GS T[eeh] will provide ongoing support and oversight to the [Simplified Acquisition of Base Engineer Requirements (SABER)] Program.” AR at 367; Def.’s SOF ¶ 43. However, CNCS does not have a SABER Program and the SABER Program was not part of the contracting activity at issue, Def.’s SOF If 45; Def.’s Mot. at 15, nor was it mentioned in the RFP or SOW, see generally AR at 273-349. UEA also referred to itself and GS Tech as a “team,” and stated that “[t]he team will use qualified local subcontractors to perform general and specialized construction tasks.” AR at 366; Def.’s SOF 1147. However, the performance of “general and specialized construction tasks” was not called for in CNCS’s SOW. See generally AR at 275-349.
In the “Subcontracting Plan” section of Volume I of the proposal, UEA stated that its “plans will include subcontractors capable of covering all of the 16 construction divisions.” AR at 374; Def.’s SOF ¶ 49. However, there is no mention of “16 construction divisions,” or, indeed, any construction divisions, in CNCS’s RFP or SOW. Def.’s SOF 1150; see generally AR at 273-363. Moreover, the requisite North American Industry Classification System (NAICS) code, cited in UEA’s proposal as “561990,” AR at 380, was incorrect. Def.’s SOF 1151. The correct NAICS code applicable to the NCCC’s requirement was 561210. Pl.’s CSOF at 11 (response to Def.’s SOF 1151).
C. CNCS’s Concerns with UEA
By September of 2004, CNCS had become displeased with the performance of GS Tech and its Project Manager, Mr. Furnish. See, e.g., AR at 1540 (August 31, 2004 internal CNCS memorandum stating that “[GS Tech] ha[s] been unable to fulfill [its] obligation in a professional and prompt manner”); id. at 1457 (August 4, 2004 memorandum from NCCC Resource Manager Dot White to NCCC Resident Manager Debra Davis indicating frustration with insufficient cleaning services by GS Tech). CNCS requested GS Tech to remove Mr. Furnish from his position in mid-September, 2004, and GS Tech complied. See id. at 1450; Def.’s SOF 1160 (citing AR at 1449-57, 1531-32, 1540-41). Although the Administrative Record contains few contemporaneous documents illustrating the specific problems with GS Tech or Mr. Fumish’s performance around September of 2004 or earlier, see, e.g., AR at 1540, 1457, Dot White, the Resource Manager for NCCC, explained in an internal memorandum written to Contracting Officer Marilyne Brooks on November 1, 2004, that “GS Tech’s performance has steadily gone downhill since Steve Dey[, the fоrmer Project Manager,] left their employ, and steps to improve the situation have been minimal and slow in coming,” id. at 1451. Therefore, stated Ms. White, CNCS was “very concerned with [UEA’s] partnership with GS Tech.” Id.
CNCS began interviewing other potential contractors, and sent another RFP, identical to the RFP sent to UEA, to Randolph on September 29, 2004. Id. at 510-600; Pl.’s SOF ¶ 64. Having been alerted to CNCS’s concerns by SBA Business Opportunity Specialist Floyd Johnson, see AR at 509, Mr. Boyd sent a letter to CNCS seeking to allay these concerns on September 30, 2004, id. Mr. Boyd assured CNCS that
G[S]Tech has hands-on experience with the entire project and would assist [UEA] only as long as necessary. Once the process has been reviewed and operations set up, then we will provide service without G[S]Tech involvement.
I can assure you that my firm can provide maintenance service without [GSjTech involvement. I just ... need time to review the process and set up for operation[.]
Id. Despite CNCS’s concerns with Mr. Furnish and his recent removal as project man
Mr. Boyd’s letter apparently did not succeed in easing CNCS’s concerns. On October 25, 2005, Randolph submitted its proposal to CNCS, id. at 483, and the next day, Ritchie Vinson, CNCS’s Chief Contracting Officer, wrote a letter to SBA’s Mr. Johnson stating that
[a]s per your instructions^] CNCS interviewed other companies and determined from the interview that [Randolph] had the capabilities needed and requested a proposal from this company. Although you assured me that this was proper and was not considered to be soliciting competition, I am requesting that you provide CNCS with written direction on how to properly proceed from here.
Id. at 481; Def.’s SOF ¶¶ 70-71. Mr. Johnson responded to Mr. Vinson’s letter in an email to NCCC Contract Specialist Marilyne Brooks on October 29, 2004:
This is in response to Mr. Vinson’s (Contracting Officer) letter of October 26, 2004 ----Per our discussions, it is a little late for a[ ] COC (Certificate of Competency) to be processed at this time. We do need a letter from your agency requesting a replacement of [UEA] with the firm you chose and details as to why this change is necessary for completion of the contract. The [SBA] will be in a better position to support your determination after receipt of this written explanation.
AR at 468-69; Def.’s SOF ¶¶ 72-73.
In the middle of this exchange, on October 28, 2004, Dot White, the Regional Resource Manager for NCCC, wrote an internal memorandum to Ms. Brooks. AR at 478-80. Ms. White stated that “[p]er [Ms. White’s and Ms. Brooks’] conversation yesterday, I was under the impression that we had rejected [UEA’s] proposal for the new maintenance contract.” Id. at 478; Pl.’s SOF 1176. Ms. White continued:
However, let me clearly stаte that we do not want to continue doing business with GS Tech or their joint venturers after November 30, 2004. The following update should provide sound reasons for this decision. When we made the decision to allow [UEA] to submit the proposal I was still very new to my position and only learned of the problems as time progressed.
AR at 478. Ms. White then expounded on numerous reasons for CNCS’s dissatisfaction with the performance of GS Tech, including problems with GS Tech’s Project Manager; dissatisfaction with GS Tech’s pest control, lawn care, mechanical, and maintenance services; water damage in CNCS facilities; problems related to GS Tech’s unresponsiveness to service requests; and unacceptable performance of everyday tasks. Id. at 478-80.
On November 1, 2004, in a similar internal memorandum, Ms. White further elaborated on “why [CNCS is] requesting replacement of [UEA] with Randolph Technologies.” Id. at 475. Ms. White stated:
We have doubts that [UEA] will be able to fulfill the terms of the contract, not only because of their partnership with GS Tech but also because of Joe Boyd’s apparent lack of concern or interest. Specifically, [UEA] lists Rick Furnish as the Project Manager. However, we recently requested that Rick Furnish be removed as the Project Manager for GS Tech due to poor communication, and failure to follow through....
[W]e believe ... [UEA]did not have the correct [Standard Industrial Classification (SIQ/NAICS] codes to be considered for this contract. When we asked Rick Furnish about this he stated it was “no big deal[.]”
Since Mr. Boyd’s ... visit I was contacted only once by Mr. Boyd requesting a status on his proposal. Jim McClurg was never called. He never contacted us again; however, GS Tech has asked about the status several times and in fact stated that if we were not satisfied with the partnership with [UEA,] they (GS Tech) had other options for partnerships.
Finally[,] we are very concerned with [UEA’s] partnership with GS Tech. As noted in my memo dated October 28, 2004[,]*9 GS Tech’s performance has steadily gone downhill since Steve Dey left their employ, and steps to improve the situation have been minimal and slow in coming. Therefore, I reiterate, we do not want any partnership with GS Tech and therefore, respectfully request the contract be replaced with Randolph Technologies.
Id.
On November 5, 2004, UEA owner Joe Boyd wrote a letter to CNCS Contracting Officer Patricia Holliday, stating, “I [have] been informed unofficially that my capability to [p]erform the NCCC contract ... [has] been questioned [b]y your agency----” Id. at 473. Mr. Boyd stated that he “talkfed] with [M]s. [M]arilyne [B]rooks concerning this matter[, and] she [i]nform[ed] me that they [were] looking at other option[s] concerning ... awarding the contract----” Id. Moreover, Mr. Boyd stated that he “talk[ed] with [M]r. [F]loyd Johnson[, t]he SBA representativе for the ... 8[(]a) program!,] about this matter [a]nd ask[ed] him to intervene on my firm[’s] be[]half____” Id. Mr. Boyd concluded by stating that “if this award [ha]s been award[ed] to another contractor], I[ ]am filing a letter of protest against [CNCS f]or [conducting an] improper evaluation process ____” Id. The court has no indication that CNCS ever responded to Mr. Boyd’s letter.
On November 9, 2004, Ritchie Vinson responded to SBA Business Opportunity Specialist Floyd Johnson’s request for a “letter from [CNCS] requesting a replacement of [UEA] with the firm [CNCS] chose and details as to why this change is necessary for the completion of the contract.” AR at 469; id. at 470-72. Mr. Vinson’s letter requested the replacement of UEA with Randolph, and went on to explain the reasons for this request:
Based on [CNCS’s] recent, direct experience this past year, and the professional experience of [UEA], we do not believe that [UEA] would be able to properly fulfill the requirements or terms of the new maintenance contract.
____[UEA] seems ill prepared to perform the required services without extensive support from GS Tech____
[UEA] lists in its proposal for the new contract Mr. Furnish, to serve as its new Project Manager. Recently, [CNCS] officials at the NCCC Charleston campus requested that Mr. Furnish be removed as the GS Tech Project Manager due to poor communication, and failure to follow through.
Furthermore, upon further review of [UEA’s] proposal and credentials, it is clear that while the new contracting activity requires the performance of facilities maintenance services, that is not the area of [UEA’s] professional experience or expertise. Rather, [CNCS] has found that [UEA’s] principal personnel work in construction contracting. Construction] contracting is far different work from providing maintenance services for a live-in dormitory campus. Also[,] the [UEA] proposal makes reference to construction work on a “SABER program”, possibly referring to a Department of Defense military project, wholly unrelated to [CNCS]’s required contracting activity.
In addition, [CNCS’s] experience with GS Tech during the past year at the NCCC Charleston campus has not been favorable. GS Tech’s performance has steadily gone downhill since Steve Dey left their employ, and steps to improve the situation have been minimal and slow in coming.
Id. at 470-71. Thus, Mr. Vinson requested the SBA to “withdraw [UEA] from consideration” as soon as possible. Id. at 472.
On November 11, 2004 SBA District Director Ms. Singleton and Mr. Johnson contacted NCCC Contract Specialist Marilyne Brooks and left a voicemail message indicating that CNCS could not simply replace UEA with another 8(a) vendor. Def.’s SOF 1179; see AR at 467 (E-mail from Ms. Brooks to Ms. Singleton and Mr. Johnson indicating receipt of voicemail). Ms. Brooks replied in an email to Ms. Singleton and Mr. Johnson the next day:
In your joint voicemail yesterday you indicated [that] now you are not inclined to*10 replace the 8(a) contractor. You said that you directed Mr. Boyd to thе appropriate SBA office to file for a Certificate Of Competency (COC). That COC application process can take quite a bit of time as you are aware. In [the] meantime, my agency is left without recourse to select an appropriate contractor to do the required work.
I kindly ask you to please revisit [CNCS’s] request for an 8(a) replacement and/or to please advise what we can do to resolve this issue immediately.
AR at 467. That same day, Ms. Singleton responded:
Forgive any confusion that we may have caused with regard to your desire to replace the proposed 8(a) contractor on this project.
We were mistaken. We cannot just replace the firm. According to Subpart 19.6 of the [Federal Acquisition Regulations (FAR) ], the firm may request a Certificate of Competency. Also[,] according to 48 C.F.R.[§ ] 19.809, “The contracting officer should request a preaward survey of the 8(a) contractor whenever considered useful. If the results of the preaward survey or other information available to the contracting officer raise substantial doubt as to the firm’s ability to perform, the contracting officer must refer the matter to SBA for Certificate of Competency consideration under subpart 19.6.”
I have spoken with our Contracting Office in Atlanta, GA. The processing time for a COC is 15 days. You can ask for a rush on it. Please submit your request for a COC ....
Id. at 466; Def.’s SOF 11I82-83.
D. The Preaward Survey
On November 15, 2004, in accordance with Ms. Singleton’s suggestion, CNCS Contracting Officer Mr. Vinson directed that CNCS conduct a preaward survey.
After conducting the preaward survey, Ms. White completed Standard Form 1403 (SF 1403), a General Services Administration (GSA) form prescribed under the FAR, see 48 C.F.R. § 53.209-l(a) (2005), for procuring agencies to use when conducting a preaward
Currently, Mr. Boyd has no connections in the Charleston area except through G.S. Tech. His company is located in his home in Gray Court, [Sоuth Carolina] approximately] 185 miles from Charleston. His intention is to hire current G.S. Tech employees to perform the work, even though I specifically stated we were there to determine his plan to handle this contract without G.S. Tech’s assistance. When asked what equipment he had[,] he stated [that] he planned to purchase equipment from G.S. Tech or purchase items on his own. When asked where his office would be loeated[,] he stated that he would use the office in the garage area of the work site until he could find a location. When asked who the Project Manager would be[,] Mr. Boyd stated that G.S. Tech had let Rick Furnish go and he didn’t know why, but that he would hire Mr. Furnish back for the position. For the position of Quality Control and Safety Rep he stated that this ... was not yet determined ....
Mr. Boyd is a sole proprietor with a total equity of $24,892 as of July 31, 2004 ----
He is bonded through BB & T Goldsmith Joyner ... for $100K and his [insurance is through Stovers Agency ... with [$]1M general liability and [$]5M in general aggregate ____
[After he showed me his list of accounts for credit,] I restated to Mr. Boyd everything I had written and he concurred with my findings.
Summary Opinion:
In my opinion, [UEA] is unable to handle the maintenance contract with [NCCC]. Though his intention is to hire G.S. Tech employeesf,] there is no guarantee these employees would accept his offer. Furthermore, his cashflow is limited and insufficient to handle this contract on his own. Though he strongly stated he could do this contract without the assistance of G.S. Tech, he clearly cannot and he has no other company in mind to assist him other than G.S. Tech.
AR at 464.
E. Certificate of Competency Review
On November 23, 2004, after receiving the results of the preaward survey, CNCS Chief Contracting Officer Mr. Vinson determined that UEA was non-responsible
*12 The Office of Procurement Services has determined that [UEA] lacks certain elements of responsibility that would enable the company to perform facilities support services, including operation, maintenance repair alteration, and other miscellaneous services for our agency in a satisfactory manner. Therefore ..., we hereby request that the [SBA] issue a Certificate of Competency for this firm.
AR at 454 (nonresponsibility determination letter).
The SBA also received from UEA an application for a COC on December 15, 2004. Id. at 933; Def.’s SOF 11115; see AR at 932-1200 (Application for a COC)
However, this did not conclude the COC review process. See generally 48 C.F.R. § 19.601(a) (stating that the SBA is to evaluate elements beyond financial capability to determine responsibility before issuing a COC); C & G Excavating v. United States,
Following this investigation, on December 29, 2004, Mr. Hansen prepared a Narrative Report for the SBA. AR at 1419-22. In the Narrative Report, under the heading “Technical Capabilities,” Mr. Hansen noted that “the contracting officer ... for [CNCS] has found [that] ‘UEA M[r.] Boyd owner[,] does not have the technical ability to perform on this bid requirement----” Id. at 1420. Mr. Hansen then stated, “In my opinion[,] Mr. Boyd does not have the technical capabilities to perform this bid item without GS [T]eeh help.” Id. Mr. Hansen listed the specific reasons for this finding:
1. [Mr. Boyd] has no [k]nowledge of the cost estimate, when asked about the cost he tells me to talk to his project manager, Mr. Richard Furnish[, w]ho did the break[]down on the cost estimates for this job.
2. Mr. Boyd has to use GS Tech subcontractors for supplying required jobs (a. fire alarm service, (b. waste disposal^] (c. cleaning Bldg. 202,669,676, [](d. pest control,[ ](e. uniforms, (f. back-flow, (g. boiler rebuild, [ ](h. water loop testing, [ ](i. lawn/grounds maintenance, (j[.] pm maintenance, [ ](k[.] fuel oil and all materials and suppl[ie]s. [T]hese are subcontracting jobs.
3. As of Dec[ember] 30, 2004[,] Mr. Boyd does not have a[n] approved project manager for this job[.] ... Mr. Furnish was requested to be removed as project manager with GS Tech in September] 2004. The question is why did Mr. Boyd still use Mr. Furnish when GS Tech removed him. On [December 28, 2004,] Mr. Boyd sent me [five] resumes [t]o look over but didn’t state which one would be the new project manager ____With[]out GS Tech[, UEA] couldn’t perform this bid requirement.
4. [UEA’s] technical proposalf,] date[d December 5, 2004,] shows Mr. Furnish as project manager.
5. [UEA] will hire GS Tech employees which have been performing the job for GS Tech. [UEA] has [a] written letter from employees!:]
(a. Richard Hale, mechanical technician.
(b. Theodore Brown, electrical technician.
(c. Robert Bright, general maintenance.
(d. Alfreda Green, custodial maintenance.
Id.
Under the heading “Plant, Facilities and Equipment,” Mr. Hansen found that “[UEA] has no facilities or equipment for this bid requirement, and] he will be leasing all equipment and facilities from GS Tech----” Id. Under the heading “Material Availability,” Mr. Hansen found that “[UEA] will be sub contracting all supplies from GS Tech.” Id. Under the heading “Performance Record,” Mr. Hansen found that “[f]or [UEA, past and current performance] is rated satisfactory. [UEA] subcontractor GS [Tech’s] performance is rated poor by [CNCS].” Id. Under the heading “Production/Performance Capability,” Mr. Hansen found that “[UEA] will use GS Tech as a subcontractor on jobs that require yearly checks or clean up. [CNCS] does not want GS Tech on this contract ..., which would leave [UEA] unable to perform the required task[s] with[]out GS Tech help.” Id. at 1421.
In conclusion, Mr. Hansen stated:
In my opinion, [UEA and Mr. Boyd] lack[ ] the technical capabilities to perform this bid requirements Mr. Boyd’s] sub[]eon-*14 tractor[,] GS Tech[,] which [will do] most of the work for [UEA,] has had problems on the job with [CNCS] [in] the last 6 months and was rated poor[J [GS Tech] is not wanted as a subcontractor which leaves []UEA with no subcontractor or letters to perform the work. Cost estimates were done by proposed project [manager Richard Furnish, who] can not be used.
Id. Thus, Mr. Hansen “recommend[ed] that a COC not be issued from a[] CAPACITY standpoint.” Id. at 1422.
On December 30, 2004, the SBA received from GS Tech—not from UEA—another ré-sumé of a prospective Project Manager for the contracting activity. Id. at 1433-36. Also on that date, SBA Business Opportunity Specialist Mr. Johnson sent an email regarding UEA’s COC to Mr. Hansen and SBA District Director Ms. Singleton. Id. at 1428. Mr. Johnson noted that he “ha[s] been working with Mr. Boyd (at [UEA]) for the past [flour years[] as his Business Opportunity Specialist. The largest project that [UEA] has handled is in the area of $50,000 during this period of time.” Id. Mr. Johnson continued:
We agreed to match [UEA] with the $3 [m]illion [p]roject with [CNCS] with the under[ ]standing that [UEA] would be teaming with GS Tech (the incumbent firm) to assist with the [m]anage[me]nt and [flinaneial requirement^] of the con-tract____
Based on the above and previous information, I am of the opinion that [UEA] is unable to manage and finance the [CNCS c]ontract with[]out a teaming arrangement.
Id.
Based on all of this information, the SBA decided to deny the COC. On January 6, 2005, SBA Area Director Mitchell Morand wrote CNCS Contracting Officer Mr. Vinson to inform him of this decision. See id. at 1478 (“Based on comprehensive analysis of all available facts and information, the SBA has determined to decline to issue a COC in this instance.”); Def.’s SOF 11129; PL’s SOF It 154. On that same day, Mr. Morand notified Mr. Boyd of this decision in a letter, stating:
Based on our analysis of all relevant facts and information, the [SBA] has determined NOT to issue a[COC] in ... regard to [CNCS]’s solicitation ....
The SBA has given careful consideration to your company’s application for a COC and finds a lack of assurance that the proposed contract would be completed as required by the solicitation. Furthermore, the SBA finds no sufficient reason for disagreeing with the decision of the contracting officer. The COC Review Committee met and the decision to deny [UEA] a COC was based on technical and past performance of GS Tech, your subcontractor for this project. We regret that present conditions do not justify the issuance of a COC on this solicitation. ...
If you wish to meet with the SBA to discuss the reasons for this denial or require further information, please contact this office____
AR at 1477.
F. GAO Protest
On January 18, 2005, UEA filed a protest with the Government Accountability Office
G. GS Tech Continues as Incumbent Contractor Until Randolph is Awarded Contract; UEA Files Complaint
CNCS extended GS Tech’s contract every month between November 30, 2004 and May 31, 2005, apparently waiting for the situation with UEA to be resolved. See id. at 1704, 1713, 1728, 1737-38, 1747, 1753; Def.’s SOF 11136. On May 27, 2005 CNCS and Randolph entered into a contract for the NCCC maintenance services contracting activity, and Randolph began performance on June 1, 2005. See AR at 1757-98 (contract); Def.’s SOF 11137. Soon afterwards, on June 8, 2005, UEA filed the post-award bid protest before the court.
II. Discussion
Plaintiffs post-award bid protest seeks the following permanent injunctive relief: (1) a finding that the record contains sufficient evidence showing that UEA has the required responsibility to perform on the NCCC maintenance support services contract and therefore, in accordance with such a finding, an order directing CNCS to award the contract to UEA; (2) alternatively, an order remanding the matter back to a new and independent contracting officer of CNCS to conduct a proper responsibility determination and award the contract to UEA if UEA is found responsible; (3) an order awarding plaintiff attorney’s fees and bid and proposal expenses; and (4) an order granting any other relief the court deems proper. Compl. at 46; Pl.’s Mot. at 40. Plaintiffs allegations supporting the relief it seeks can be summarized as follows: First, plaintiff alleges that CNCS, after specifically choosing UEA for the NCCC maintenance support services sole source contract, arbitrarily, capriciously, and in bad faith made the determination that UEA should not be awarded the contract without conducting a preaward survey, making a proper responsibility determination, or expressing to UEA any of its concerns. See Pl.’s Mot. at 7-16. Second, plaintiff alleges that when CNCS finally did conduct a pre-award survey and make a responsibility determination, it did so improperly and in bad faith, and that the results of the preaward survey and responsibility determination were “predetermined” by CNCS. See id. at 19-21. Third, plaintiff alleges that the COG process at the SB A was “a sham” because CNCS pressured the SBA into declining to issue a COC despite the fact that UEA was qualified to perform on the contract. See id. at 25-33.
A. Standard of Review
Plaintiff alleges jurisdiction under the Tucker Act. Compl. at 1,113. The Tucker Act, as amended by the Administrative Dispute Resolution Act (ADRA), 28 U.S.C. § 1491(b), confers jurisdiction on this court
to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1) (2000).
The parties have filed cross-motions for judgment on the administrative record under Rule 56.1 of the Rules of the Court of Federal Claims (RCFC) 56.1. Pl.’s Mot. at 1; Def.’s Mot. at 1. RCFC 56.1 governs the court’s review of an agency’s decision on the basis of an administrative record. RCFC 56.1. As the Federal Circuit recently observed in Bannum, Inc. v. United States, “[A] judgment on the administrative record [is distinguishable] from a summary judgment requiring the absence of a genuine issue of material fact.”
The court reviews a bid protest action under the standard set forth in Section 706 of the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2000). See NVT Techs., Inc. v. United States,
The Federal Circuit has stated that, under the APA standard applied in Scanwell, and now under the ADRA “ ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” Banknote,
If the protester fails to demonstrate that a procurement statute, regulation, or procedure has been violated, the court’s review of the award decision focuses on whether the decision was arbitrary, capricious, or an abuse of discretion. See 5 U.S.C. § 706(2)(A). Under the arbitrary and capricious standard of review, the court must sustain an agency’s award if it has a rational basis. Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co.,
“Identical review standards apply under the APA in the context of a sole-source award.” Emery Worldwide Airlines, Inc. v. United States,
a sole source award may be set aside if either: (1) the sole-source award lacked a*17 rational basis; or (2) the sole-source procurement procedure involved a violation of a statute, regulation, or procedure----The test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.
Id.
When a plaintiff requests a permanent injunction, as here, see Compl. at 46, the court must consider: “(1) whether, as it must, the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief,” PGBA, LLC v. United States,
B. Supplementation of the Administrative Record
As an initial matter, the court resolves Defendant’s Motion to Strike Declarations of Joe Boyd and George O’Neal or, Alternatively, for Leave to Submit Declarations Responding to Allegations Regarding the Pre-Award Survey (Motion to Strike or Def.’s Mot. Strike) and responsive briefing. Defendant moves the court to “strike the declarations of Joe Boyd ... and George O’Neal, which are annexed as exhibits to the complaint of plaintiff ... and are relied upon by UEA in its motion for judgment upon the administrative record.” Def.’s Mot. Strike at 1. Defendant argues that these declarations “contain irrelevant, immaterial and argumentative allegations that are to[o] numerous to list____Further, the declarations repeatedly make factual assertions without citing any documentary support, whether in the record or otherwise.” Id. at 2. In addition, defendant requests that if the court does not strike these declarations in their entirety, the court should “grant leave to file the declarations of Ms. White and Ms. Davis so that we have the opportunity to correct erroneous allegations [made] by Mr. Boyd about the pre-award survey.” Id.
Plaintiff responds that “[i]n order for th[e c]ourt to determine whether the Agency’s actions were rational, arbitrary and capricious or a violation of law and regulation, both the Supplemental Declaration of Joe Boyd and the Supplemental Declaration of George O’Nealf,] as well [a]s the two Declarations offered by ... defendant, should be admitted into evidence.” Pl.’s Resp. to Mot. Strike at 2. Citing a number of cases, plaintiff argues that “granting supplementation of] the administrative record is more the norm than the exception____ [T]his [c]ourt by many different [j]udges has permitted the supplementation of the administrative record to aid it.” Id. at 3. Thus, plaintiff asserts, the court should do so in this case as well. Id. at 1.
When deciding cross motions for judgment on the administrative record, “the focal point for judicial review ‘should be the administrative record already in existence, not some new record made initially in the reviewing court.’ ” Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States,
The court finds that the “agency action before the court is susceptible to record review,” Al Ghanim,
C. Standing
“The party invoking federal jurisdiction bears the burdеn of establishing [the] elements [of standing],” Lujan v. Defenders of Wildlife,
“[a] disappointed party can establish prejudice either by showing: (1) proceeding without the violation would have made the procurement official’s decision to make a sole-source award rather than to conduct a competitive bidding process irrational, and in a competitive bidding process, the complaining party would have a substantial chance of receiving the award; or (2) proceeding without the violation, the complaining party would have a substantial chance of receiving the sole-source award.”
Myers,
Plaintiff states that it “fit[s] under number (2) [in Myers] because if the actions complained of ... had not improperly occurred, ... UEA would have continued to receive the sole source award.” Pl.’s Mot. at 6. Indeed, plaintiff argues, CNCS specifically told the SBA on April 22, 2004 that “[i]t is [CNCS]’s intent to obtain the services of [UEA].” Id. at 11; AR at 602 (Letter from CNCS Contracting Officer Patricia Holliday to SBA Business Opportunity Specialist Floyd Johnson). Moreover, asserts plaintiff, “[CNCS] and Dot White in particular specifically asked for the award to be made to UEA and fully recognized the relationship between UEA and GS Tech.” Pl.’s Mot. at 11. Nevertheless, according to plaintiff,
[b]y October 26, 2004, [CNCS] had already decided to reject UEA and proceeded to perform ‘predetermined evaluations[.’] In a letter dated October 26, 2004, Contracting Officer Ritchie D. Vinson asked [the] SBA how to proceed as quickly as possible to formally reject UEA. In an October 28, 2004[] internal memorandum, Ms. White stated that “I was under the impression that we had rejected [UEA]’s proposal for the new maintenance contract.”
Id. at 12 (emphasis omitted). In addition, plaintiff argues that “[the] SBA ... succumbed to relentless pressure from the agency in declining the COC and failed to follow the recommendation of regional SBA to issue [a] COC.” Id. at 21 (emphasis and capitalization omitted). Plaintiff argues that, but fоr these “predetermined evaluations” and this “relentless pressure,” plaintiff “would have continued to receive the sole source award,” Pl.’s Resp. at 11, adding a “gross income of $2[ million] ... and ... 8 percent profit,” as well as “providing] excellent capabilities to advance and rise to a higher level of seeking competitive procurements,” id. at 28. Plaintiff therefore concludes that it “has established prejudice, standing, and status as an interested party.” Pl.’s Mot. at 6.
In its Cross Motion, defendant notes that “[although this was not a competitive solicitation, this case does not fit the normal sole-source bid protest fact pattern either.” Def.’s Mot. at 14. Under such circumstances, defendant argues, “regardless of what type of bid protest this is ..., to have standing, a disappointed party must demonstrate that it had a reasonable chance of receiving an award. UEA’s conclusory assertions that it could have performed this contract will not suffice.” Id. Defendant states that “UEA’s proposal was so deficient in so many important areas that it is not difficult to conclude that UEA had no substantial chance of receiving an award and, therefore, could not have been prejudiced by the denial of a contract and the subsequent award to another party.” Id. at 20. Accord
The court agrees with defendant that this case is not a “normal sole-source bid protest.” Id. at 14. In a typical sole source bid protest, the protestor disputes the government agency’s decision to award a sole source contract to another company without providing the protestor the opportunity to bid on the contract. See, e.g., Myers,
Under such circumstances, the court concludes that UEA has “greater than an insubstantial chance of securing the contract if successful on the merits of the bid protest.” ITAC,
Defendant also argues that “UEA’s failure to seek judicial relief prior to June 2005 constitutes laches.” Def.’s Mot. at 9. Defendant makes this argument because, “[djespite the fact that the non-responsibility finding was made in November 2004, UEA did not file this protest until June 8, 2005, after [Randolph] was awarded [the] contract and began performance.” Id.
The affirmative defense of laches requires that “1) the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time he knew or reasonably should have known of his claim against the defendant; and 2) the delay operated to the prejudice or injury of the defendant.” Poett v. Merit Sys. Prot. Bd.,
To establish prejudice, the defending party must show that allowing the plaintiffs claim after an unreasonable delay will cause the defending party either economic prejudice or prejudice in mounting a defense. Cometta v. United States,
The application of laches is committed to the sound discretion of the court and should not be made by reference to “mechanical rules.” Aero Union Corp. v. United States,
“When a limitation on the period for bringing suit has been set by statute, laches will generally not be invoked to shorten the statutory period.” CW Gov’t Travel,
Defendant argues that it satisfies the first prong of the laches inquiry, unreasonable delay, because “UEA waited ... more than six months after being found non-responsible” to file suit. Def.’s Mot. at 10. Moreover, defendant argues, “the pendency of the GAO proceedings does not excuse UEA from failing to promptly eommenc[e] a protest in this [c]ourt.” Id. (citing Gersten v. United States,
the Government clearly would be prejudiced if UEA is granted relief in this case---- [S]ince performance has begun, Randolph is now the incumbent contractor. If the [c]ourt were to grant the relief UEA requests, an experienced, acceptable contractor would be replaced by one that the Government ... believed could not perform the work. This likely would result in the Government receiving a lower quality level of services than it currently is getting from Randolph.
Id. at 11-12; see also Def.’s Reply at 2-7. Thus, defendant concludes, “[b]ecause UEA failed to commence this action for an unreasonably lengthy period of time, and because Randolph’s performance already has begun, this [c]ourt should not reach any other issue. Rather, it should deny UEA’s motion for judgment upon the administrative record, grant the Government’s cross-motion, and dismiss this action upon the ground of lach-es.” Def.’s Reply at 7.
In its Response, plaintiff states that “[t]he date of the GAO decision denying reconsideration was May 6, 2005. [Plaintiffs] filing occurred on June 6, 2005.... Thus, [defendant’s argument that [p]laintiff [delayed] for 6 months is ... misleading.” PL’s Resp. at 6. Plaintiff argues that it should not be penalized for waiting to file suit while the SBA determined whether to issue a COC and while the GAO ruled on plaintiffs protest because any delay resulting from waiting for the SBA or GAO’s decisions is not unreasonable. Id. at 8, 10. Moreover, asserts plaintiff, defendant has not established that “due to th[is] delay, it [has been] prejudiced.” Id. at 10. Nor will Randolph be prejudiced, as “every awardee under [a] contract knows that option years are not guaranteed.” Id. Thus, plaintiff concludes that “[t]he equitable doctrine of laches does not apply in [this] case.” Id.
The court agrees with plaintiff. Defendant has not established the “extraordinary circumstances” necessary to warrant what would essentially amount to reading a six-month statute of limitations into 28 U.S.C § 1491(b), the jurisdictional statute on which plaintiff relies. See Compl. at 1; CW Gov’t Travel,
E. Whether the Government’s Actions were Arbitrary, Capricious, an Abuse of Discretion, Otherwise Not in Accordance with Law, or Were Carried Out in Bad Faith
As stated above, see supra Part II.A, an agency’s procurement actions should be set aside when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D); see also Bannum,
To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park,
In addition, there is a “strong presumption that government ... officials exercise their duties in good faith.” Am-Pro Protective Agency, Inc. v. United States,
Although it is clear that plaintiff alleges that defendant acted in bad faith, see, e.g., Pl.’s Mot. at 19, 30, 33, plaintiff does not make clear whether its challenge is brought under the first basis (the procurement official’s decision lacked a rational basis) or the second basis (the procurement procedure involved a violation of regulation or procedure) for relief in bid protest actions as provided in Impresa,
1. The Evaluation of UEA’s Proposal Was Not Arbitrary and Capricious
After describing how CNCS initially selected—and the SBA initially accepted—
[t]he contracting agency actions were all designed and taken to support Dot White’s predetermination that UEA would not get the [e]ontract. This despite initially selecting UEA for [the] award. After an initial meeting with Mr. Boyd of UEA,25 Ms[.] White formed an intense dislike for UEA, based on a combination of factors, mistakenly believing that NO involvement would be legally permitted of ... GS[ ]Tech[,] the incumbent graduating 8[ (a) ] contractor^] in any capacity ... [,] together with an additional dislike of Rick Furnish[,] GS Tech’s former project manager.
Pl.’s Mot. at 12 (footnote added). Plaintiff provides no citation or support for these allegations. See id. In fact, it is apparent that defendant continued to negotiate with UEA at this time (summer of 2004), as is evidenced by defendant’s answering of Mr. Boyd’s questions regarding the RFP, see AR at 268-69, allowance of an extension of time within which Mr. Boyd could submit UEA’s proposal, see id. at 269, 273; Pl.’s SOF ¶ 50, revision of its RFP to reflect changes that had been made, see AR at 271, submission to UEA of a revised RFP, id. at 273, and an extension of time until August 6, 2004 for UEA submit its pi’oposal, id. These facts are inconsistent with—rather than clear and convincing evidence supporting—plaintiff’s allegation that, after the June 2004 meeting with Mr. Boyd, “Ms[.] White formed an intense dislike for UEA,” Pl.’s Mot. at 12, causing her to “predetermine that UEA would not get the contract,” id. As the court stated in Space Age, “Inferences cannot be substituted for the ‘clear and convincing proof required” in order “to overcome the presumption that government employees have acted conscientiously in the performance of their duties.”
Plaintiff also alleges that “by October 26, 2004, UEA was already rejected without any substantiation [and] without a responsibility determination or pre-award survey.” Pl.’s Mot. at 13. Plaintiff supports this assertion with Ms. White’s statement in an October 28, 2004 internal memorandum, that she “was under the impression that we had rejected [UEA’s] proposal for the new maintenаnce contract.” AR at 478; Pl.’s SOF ¶ 76; Pl.’s Mot. at 14. Plaintiff states that
after it was already a foregone conclusion that [Ms.] White was rejecting the award to UEA, [Ms.] White lists some purported reasons as to why she did not want UEA to be awarded the contract....
[Also on October 28, 2004,] ... the problems Ms. White had with Mr. Rick Furnish were [first] listed. These alleged deficiencies were de-minimus [sic]----
Pl.’s Mot. at 14. Defendant counters that “[n]o formal decision was made to reject UEA until November 23, 2004, when the contracting officer issued his decision that UEA was non-responsible.” Def.’s Mot. at 25. Defendant argues that “[t]he fact that, prior to that date, it was obvious to some employees of CNCS, including Ms. White, that UEA’s proposal was seriously flawed is simply the result of UEA’s submission of a severely flawed proposal.” Id. In sum, defendant states, “UEA improperly is attempting to shift the blame to CNCS for its failure to prepare an adequate proposal.” Def.’s Reply at 15.
The court agrees with the GAO that [t]he evaluation of technical proposals is a matter within the contracting agency’s discretion, since the agency is responsible for defining its needs and the best method of accommodating them. In reviewing an agency’s technical evaluation, GAO will not reevaluate the proposal, but will examine the record to ensure that the evaluation was reasonable, in accordance with stated evaluation criteria, and not in violation of procurement laws and regulations. The offeror has the burden of submitting an adequately written proposal, and an offer- or’s mere disagreement with the agency’s judgment concerning the adequacy of the proposal is not sufficient to establish that the agency acted unreasonably.
In re PEMCO World Air Servs., Nos. B-284240.3, B-284240.4, B-284240.5,
As defendant explains,
Of course red flags went up when UEA submitted a proposal with the wrong NA-ICS code. Of course red flags went up when it was discovered that UEA’s proposal promised to provide support and oversight for an Air Force program (SABER) that had nothing to do with the work being solicited or the agency issuing the solicita*27 tion. These deficiencies, combined with the others contained in UEA’s proposal, including but not limited to UEA’s discussion of construction work that was not part of the solicitation, its reference to the inapplicable DFARS, and its utter failure to address how it would perform the work that actually was in the solicitation’s [SOW],27 provided more than sufficient grounds for agency personnel to be quite concerned about UEA’s ability to perform.
Def.’s Mot. at 26 (footnote added). These concerns were not, as plaintiff contends, “foregone eonelusion[s],” or “alleged deficiencies” that “were de-minimus,” Pl.’s Mot. at 14, but were wholly reasonable and based on the contemporaneous factual circumstances facing CNCS, see Citizens to Preserve Overton Park,
2. Defendant Had No Duty to Communicate to UEA its Concerns Regarding UEA’s Proposal
Plaintiff complains that “[h]ad [CNCS] ever communicated directly with Mr. Boyd[] and given UEA a chance to explain or correct any alleged deficiencies, UEA would have alleviated [CNCS]’s concerns.” Pl.’s Resp. at 17. Plaintiff states specifically that “Ms. White’s first concern was with Mr. Furnish [being] listed as the Project Manager[,] although she never relayed this concern to UEA. It would have taken little time and little effort for [Ms.] White to convey her concerns regarding Mr. Furnish. UEA would have quickly proposed a substitute.” Pl.’s Mot. at 16 (citation omitted). Defendant responds that “UEA has failed to demonstrate that CNCS had any duty to [ask questions, seek clarifications, or express concerns to UEA].” Def.’s Mot. at 26. Moreover, defendant argues that UEA “had [no] right to materially alter its proposal—which, obviously, is what was required—so that it would have a better chance to obtain an award.” Id. at 27.
Plaintiff has cited no contrary authority indicating that defendant had a duty to express to UEA its concerns with UEA’s proposal and GS Tech’s recent performance, see generally Pl.’s Mot. at 16; Pl.’s Resp. at 17, and the court is aware of none. Indeed, defendant had no such duty, especially given that these concerns were not regarding merely minor or clerical errors but rather material omissions and other serious flaws requiring an extensive revision of plaintiffs proposal. Thus, the court finds that it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), for defendant not to communicate expressly all its concerns regarding deficiencies in UEA’s proposal. Cf. JWK Int’l Corp. v. United States,
3. The PreAward Survey Was Not Arbitrary and Capricious
Plaintiff next contends that CNCS Resource Manager Ms. White “conducted what she later labeled a pre-award survey, done solely to ‘appear’ to conform with FAR requirements.” Pl.’s Mot. at 19. Plaintiff asserts that “Dot Whitе conducted the survey with the specific intent to harm UEA and to make it as difficult as possible for Mr. Boyd to make an effective presentation____ Dot White[’]s perfunctory ‘pre-award survey1 cannot justify the non-award decision____” Id. at 20. According to plaintiff, “[t]he pre-award survey was a sham, the decision had already been made, and this visit was for the sole purpose of acquiring negative information in order to support the predetermined decision to reject UEA’s proposal.” Pl.’s Resp. at 21.
Defendant responds that “[a]s an initial matter, UEA’s argument is based upon a faulty premise. CNCS was not required to perform a pre-award survey____ UEA provides no statutory or regulatory support for its assertion that such a survey was required.” Def.’s Mot. at 29 (citation omitted). Moreover, asserts defendant, “UEA has failed to demonstrate that the conclusions from the pre-award survey were incorrect, or that additional notice would have permitted UEA to explain ... the deficiencies in its proposal or demonstrate that it was a responsible contractor.” Id. at 29-30; see also Def.’s Reply at 12.
Defendant is correct that CNCS was not required to conduct a preaward survey. Section 19.809 of the FAR states that a “contracting officer should request a preaward survey of the 8(a) contractor whenever considered useful.” 48 C.F.R. § 19.809 (emphasis added). Thus, if a contracting officer feels that a preaward survey is unnecessary, nothing in the regulations requires it. See id.; 48 C.F.R. § 9.106-l(a) (“A preaward survey is normally required only when the information on hand or readily available to the contracting officer, including information from commercial sources, is not sufficient to make a determination regarding responsibility.”). Nevertheless, SBA District Director Ms. Singleton suggested to CNCS in her November 11, 2004 email that CNCS conduct a preaward survey, AR at 466, and CNCS complied with this request, see Def.’s SOF ¶¶ 85-86; AR at 462-64 (preaward survey). After conducting the survey, Ms. White described her findings and concerns in detail in an attachment to the completed SF 1403. AR at 464; see supra Part I.D. There is no evidence in the administrative record to suggest that these findings were unreasonable or arbitrary and capricious, let alone made “with the specific intent to harm UEA.” Pl.’s Mot. at 20; see AmiPro,
4. The Responsibility Determination Was Not Arbitrary and Capricious
Plaintiff further argues that “[CNCS] ... failеd to actually conduct a ‘responsibility determination.’ [CNCS’s] review ... did not rise to [the] level of a responsibility determination---- Here, the action should not [be construed to] constitute a true ‘responsibility review.’” Pl.’s Reply at 17-18 (citation omitted). Plaintiff cites Action Serv. Corp. v. Garrett,
Under these circumstances, the court does not find that “[CNCS]’s review ... did not rise to [the] level of a responsibility determination.” PL’s Reply at 17. Indeed, “ ‘[contracting officers are “generally given wide discretion” in making responsibility determinations and in determining the amount of information that is required to make a responsibility determination.’ ” Bender Shipbuilding & Repair Co. v. United States,
examined all of the relevant ... data before him, and then carefully articulated a detailed explanation for his decision. The contracting officer’s action was the product of reasoned decision making and was amply supported by facts in the record----
Simply put, the contracting officer made an informed, complicated business judgment based upon ample factual support in the record, and the agency provided a coherent, reasonable explanation for the exercise of the contracting officer’s discretion. Responsibility decisions are largely a matter of judgment, and contracting officers are normally entitled to considerable discretion and deference in such matters. When such decisions have a rational basis and are supported by the record, they will be upheld.
Bender,
This is not a case in which the defendant did not conduct a responsibility determination, cf. Action,
5. The SBA’s COC Review was Not Arbitrary and Capricious
Plaintiff alleges that the SBA “succumbed to relentless pressure from [CNCS] in declining the COC and failed to follow the recommendation of regional SBA to issue [a] COC.” Pl.’s Mot. at 21 (emphasis and capitalization omitted). Plaintiff cites emails written on November 12, 2004 to support the proposition that the “SBA buckled under Agency pressure,” Pl.’s Resp. at 20, and plaintiff states that SBA Industrial Specialist Mr. Hansen “disregarded the certification and recommendation of Deputy District Director Singleton as well as the analysis performed back in April when UEA was reviewed, and instead echoed Dot White[’]s sham survey report.” Pl.’s Mot. at 23. Furthermore, plaintiff alleges, “Mr. Hansen chose to ignore the [r[é]sum[é]s of alternate project managers he had ... and still focused on Dot White’s concerns about [Rick] Furnish.” Id. In short, plaintiff argues that “[CNCS] pressured ... [Mr.] Hans[e]n to decline the COC,” Pl.’s Resp. at 25, which ultimately resulted in UEA’s failure to receive the CNCS contract award.
Defendant responds that “Ms. Singleton’s recommendation was limited ... to a financial review. It did not address the numerous technical deficiencies in the UEA’s proposal, or [that were] apparent from the pre-award survey.” Def.’s Mot. at 32 (citing AR 1462-66). Moreover, defendant states that “UEA provides no evidence in support of th[e] claims [that Mr. Hansen succumbed to pressure from CNCS, disregarded Ms. Singleton’s recommendations, or acted in bad faith].” Id. According to defendant, regardless of what additional materials UEA submitted to the SBA during the COC review, “UEA’s proposal speaks for itself,” Def.’s Reply at 13, and “[t]here was nothing improper in Mr. Hansen’s conduct” in reviewing these materials and ruling on UEA’s responsibility, id. at 14.
As an initial matter, “this court has jurisdiction to review the SBA’s denial of ... plaintiffs application for a COC pursuant to the court’s jurisdiction over bid protests.” CSE Constr. Co.,
The court agrees with defendant that “UEA provides no evidence in support of th[e] claims [that Mr. Hansen succumbed to pressure from CNCS, disregarded Ms. Singleton’s recommendations, or acted in bad faith].” Def.’s Mot. at 32. The November 12, 2004 emails which plaintiff reads as demonstrating that the “SBA buckled under Agency pressure,” Pl.’s Resp. at 20, are at least as easily understood as demonstrating entirely proper behavior. CNCS was attempting to comply with what it understood to be the proper procedure under the 8(a) Program for rejecting a proposal it deemed to be deficient. See AR at 466-67 (email from NCCC Contract Specialist Marilyne Brooks to SBA Representatives Theresa Singleton and Floyd Johnson) (“I kindly ask you to please revisit [CNCS’s] request for an 8(a) replacement and/or to please advise what we can do to resolve this issue immediately.”). The SBA declined to “just replace [UEA],” id. at 466, instead advising CNCS to conduct a preaward survey and, “[i]f the results of the preaward survey or other information available to the contracting officer raise substantial doubt as to the firm’s ability to perform,” to refer the matter to the SBA for COC review, id. Rather than evidencing that the SBA “buckled under Agency pressure,” Pl.’s Resр. at 20, this exchange demonstrates that the SBA refused to circumvent what it believed to be proper procedure by replacing UEA with another contractor without any review. See AR at 466-67. Moreover, the court agrees with defendant that CNCS’s effort to get “a rush” on the COC, id. at 466, “merely shows that ... CNCS was attempting to make sure that the COC process ... did not cause undue delay.” Def.’s Reply at 15. Attempting to expedite a time-sensitive process, without more, does not amount to arbitrary or capricious activity, bad faith, or improper “pressure.”
In addition, SBA District Director Singleton’s recommendation for approval of the COC was based on UEA’s financial capability and did not conclude the COC review process. See 48 C.F.R. § 19.601(a) (listing other factors, in addition to financial capability, to be considered by the SBA pursuant to the COC review process); C & G Excavating v. United States,
6. Conclusion
For the foregoing reasons, the court determines on the merits that defendant’s actions
F. Plaintiff is Not Entitled to Injunctive Relief
Plaintiff has not succeeded on the merits and is therefore not entitled to injunctive relief. See PGBA
III. Conclusion
For the foregoing reasons, plaintiffs Motion for Judgment on the Administrative Record is DENIED and defendant’s Cross Motion for Judgment on the Administrative Record is GRANTED. The Clerk of the Court shall enter judgment DISMISSING the complaint. No costs.
On or before March 20, 2006, the parties, together or separately, may file requests for deletion of protected/privileged material from the published opinion to be issued by the court. Each such request shall identify with particularity the proposed deletion and the reason therefor.
IT IS SO ORDERED.
Notes
. In addition to plaintiffs Complaint, the court has before it Plaintiff's Motion for a Preliminary Injunction (Pl.’s Mot. Prelim. Inj.); Plaintiff's Motion for Summary Judgment on the Basis of the Administrative Record (Pl.'s Mot. or Motion); Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment and Defendant's Cross Motion to Dismiss and for Judgment Upon the Administrative Record (Def.’s Mot. or Cross Motion); Plaintiff's Response and Reply to Defendant's Opposition to Plaintiff's Cross Motion for Summary Judgment and Defendant’s Cross Motion to Dismiss and for Judgment Upon the Administrative Record (Pl.’s Resp. or Response); Defendant’s Motion to Strike Declarations of Joe Boyd and George O’Neal or, Alternatively, for Leave to Submit Declarations Responding to Allegations Regarding the Pre-Award Survey (Motion to Strike or Def.'s Mot. Strike); Plaintiff's Response to Defendant's Motion to Strike Declarations of Joe Boyd and George O’Neal, or Alternatively, for Leave to Submit Declarations Responding to Allegations Regarding the Pre-Award Survey (Pl.’s Resp. to Mot. Strike); Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion to Dismiss and for Judgment Upon the Administrative Record, and to Plaintiff's Opposition to Defendant’s Motion to Strike Declarations (Def.’s Reply or Reply); Plaintiff's Statement of Facts (Pl.’s SOF); Defendant’s Counter-Statement of Facts (Def.’s CSOF); Defendant’s Statement of Facts (Def.’s SOF); Plaintiff's Counter Statement of Facts (Pl.’s CSOF); the Administrative Record (AR); Defendant’s Supplemental Brief (Def.’s Suppl. Br. or Supplemental Brief); Plaintiff's Response to Defendant’s Supplemental Brief (Pl.’s Suppl. Resp. or Supplemental Response); and Defendant’s Reply to Plaintiff's Response to Defendant's Supplemental Brief (Def.’s Suppl. Reply or Supplemental Reply).
. Facts citing the filings of only one party do not appear to be in dispute.
. Prior to the April 2000 award, GS Tech had been performing as the incumbent contractor since 1996. Pl.’s SOF ¶ 17; Pl.’s CSOF at 3 (response to Pl.’s SOF 1110).
. Pub.L. No. 85-536, 72 Stat. 384 (1958) (codified as amended at 15 U.S.C. §§ 631-657). The stated policy of the Small Business Act is to "aid,
. Section 637(a), in conjunction with § 636(j)(10)-(16), constitutes what is commonly referred to as the 8(a) Program. Def.'s Suppl. Br. at 9. 48 C.F.R. § 19.800 (2005) explains:
(a) Section 8(a) of the Small Busines[s] Act (15 U.S.C. 637(a)) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA’s subcontractors are referred to as 8(a) contractors.
(b) Contracts may be awarded to the SBA for performance by eligible 8(a) firms on either a sole source or competitive basis.
(c) When, acting under the authority of the program, the SBA certifies to an agency that the SBA is competent and responsible to perform a specific contract, the contracting officer is authorized, in the contracting officer’s discretion, to award the contract to the SBA based upon mutually agreeable terms and conditions.
(d) The SBA refers to this program as the 8(a) Business Development (BD) Program.
48 C.F.R. § 19.800(a)-(d) (2005).
. See 13 C.F.R. § 124.2 (2005) ("A firm that completes its ninе year term of participation in the 8(a) BD program is deemed to graduate from the program. The nine year program term may be shortened only by termination, early graduation or voluntary graduation as provided for in this subpart.”).
. UEA is described in an "SBA Firm Profile.” See AR at 1037. Under the heading "Capabilities Narrative," the SBA Firm Profile lists "Renovation, Construction, Fabrication, Residential, [and] Commercial.” Id. Under the heading "Business Type Percentages,” the SBA Firm Profile lists "Construction (75%),” "Manufacturing (10%),” “Research & Development (5%),” and "Service (10%).” Id.
. This "potential relationship” was subsequently realized on April 14, 2004, when UEA entered into a "Teaming Agreement” with GS Tech. AR at 813-24 (Teaming Agreement); Pl.’s SOF f 55. The Teaming Agreement stated that UEA and GS Tech, "because of their different capabilities, has determined that they would benefit from a Teaming Agreement between their respective organizations in order to develop an integrated team for submission of a proposal or proposals.” AR at 813; Pl.’s SOF U 56.
. Procurements offered to the 8(a) Program with an estimated value of $3 million or less ($5 million for manufacturing), including options, may be awarded on a sole source basis. Procurements with estimated values above those threshold amounts are awarded through competitions limited to eligible 8(a) participants. 13 C.F.R. § 124.506 (2005); see generally 15 U.S.C. § 637(a)(2)(D); 13 C.F.R. §§ 124.502, 124.503.
. The SBA's examination report states that [i]n making the selection [of UEA,] the following determinations were made, as applicable;
1. [UEA] has managerial and technical capability to perform.
2. [UEA] can finance from internal or external resources.
3. [UEA] can obtain bonding----
4. Requirement is within approved 8(a) support level.
5. The assigned NAICS Code is appropriate[.]
6. [UEA] is approved for assigned NAICS Code.
7. [UEA] is current with financial statements for period ending 12/31/03.
AR at 908. Defendant states that this examination was nothing more than a "cursory paper review of UEA’s file at that office.” Def.'s CSOF at 16 (response to Pl.'s SOF ¶ 40). The court has before it no evidence to support or refute this assertion. The court agrees, however, that "the document ... [did not] ... obligate[] the Government to contract with UEA.” Id. at 16-17 (response to Pl.’s SOF ¶ 40).
. Plaintiff disputes this assessment of the SOW, stating that it contains, inter alia, "contractor requirements to maintenance, including 'Replacement, Modernization, [and] Renovation’ requirements." PL's CSOF at 10 (response to Def.'s SOF 148). However, the "Replacement, Modernization, [and] Renovation” section of the SOW states:
During the term of the contract, the Government may replace, renovate, or improve equipment, systems, facilities, components, and fixtures at the Government’s expense and by means not associated with this contract. All replaced, improved, updated, modernized, or renovated equipment, fixtures, facilities, components, and systems shall be maintained, oper*7 ated, and/or repaired by the Contractor at no additional cost to the Government ....
AR at 283 (emphasis added). Nowhere does the SOW call for the contractor to perform construction-related tasks, nor does the court find that the various "maintenance,” "operation,” or "repair” services requested, see AR at 283-87, constitute "construction tasks” as plaintiff argues, see Pl.'s CSOF at 10 (response to Def.'s SOF 1148).
. The SBA uses the NAICS codes to determine whether an entity qualifies as a "small business concern,” generally by reference to the number of employees or the amount of annual receipts, for different classes of economic activity or industry, See 13 C.F.R. § 121.201 (2005); see generally Advanced Sys. Tech., Inc. v. United States,
. 48 C.F.R. § 19.601 describes the general COC procedure, stating, in pertinent part:
(a) A [COC] is the certificate issued by the [SBA] stating that the holder is responsible (with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting) for the purpose of receiving and performing a specific Government contract.
(b) The COC program empowers the [SBA] to certify to Government contracting officers as to all elements of responsibility of any small business concern to receive and perform a specific Government contract. The COC program does not extend to questions concerning regulatory requirements imposed and enforced by other Federal agencies.
48 C.F.R. § 19.601(a)-(b)(2005).
. The definition of "preaward survey” is set forth at 48 C.F.R. § 2.101, which states: “Pre-award survey means an evaluation of a prospective contractor's capability to perform a proposed contract.” 48 C.F.R § 2.101.
. 48 C.F.R. § 9.104-1 provides the general standards for determining responsibility:
To be determined responsible, a prospective contractor must—
(a) Have adequate financial resources to perform the contract, or the ability to obtain them...;
(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;
(c) Have a satisfactory performance record ____A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104—2;
(d) Have a satisfactory record of integrity and business ethics;
(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors)
(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them ...; and
(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations.
48 C.F.R. § 9.104-1.
. 48 C.F.R. § 9.103 states, in pertinent part:
(a) ... [Contracts shall be awarded to[] responsible prospective contractors only.
*12 (b) No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility.
48 C.F.R. § 9.103.
. 13 C.F.R. § 125.5(a)(2) states: "A contracting officer must, upon determining an apparent low small business offeror to be nonresponsible, refer that small business to SBA for a possible COC ....” 13 C.F.R. § 125.5(a)(2) (2005); see also 48 C.F.R. § 19.601(c) (same). 48 C.F.R. § 19.602-1 states, in pertinent part:
(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting ...) the contracting officer shall—
(1) Withhold contract award ...; and
(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures ....
(c) The referral shall include-(1) A notice that a small business concern has been determined to be nonresponsible, specifying the elements of responsibility the contracting officer found lacking ....
48 C.F.R. § 19.602-1; see also 13 C.F.R. § 125.5(c) (providing for same procedure in almost identical terms).
. 13 C.F.R. § 125.5(d) states, in pertinent part:
(1) Upon receipt of the contracting officer's referral, the Area Office will inform the concern of the contracting officer’s negative responsibility determination, and offer it the opportunity to apply to SBA for a COC ____
(2) The COC application must include all information and documentation requested by SBA and any additional information which the firm believes will demonstrate its ability to perform on the proposed contract.
13 C.F.R. § 125.5(d)(1), (2).
. 48 C.F.R. § 19.602-2 states, in pertinent part: "Within 15 business days ... after receiving a notice that a small business lacks certain elements of responsibility, the SBA Area Office will • • • L] [a]t the completion of the process, notify the concern and the contracting officer that the COC is denied or is being issued." 48 C.F.R. § 19.602-2(e).
13 C.F.R. § 125.5 states, in pertinent part:
(j)(2) After reviewing all available information, the [Associate Administrator for Government
Contracting (AA/GC)] will make a final decision to either issue or deny the COC. If the AA/GC's decision is to deny the COC, the applicant and contracting agency will be informed in writing by the Area Office____
(k) ... The notificatiоn to an unsuccessful applicant following either an Area Director or a Headquarters denial of a COC will briefly state all reasons for denial and inform the applicant that a meeting may be requested with appropriate SBA personnel to discuss the denial.
13 C.F.R. § 125.5(j)(2) and (k).
. In Scanwell, the circuit court upheld the district court’s review of government procurement decisions under the APA. See Scanwell,
. The court notes a possible discrepancy between the articulations in Myers and in ITAC of the standard for establishing prejudice in the standing inquiry. In Myers, the standard is whether, " 'proceeding without the violation, the complaining party would have a substantial chance of receiving the sole-source award.'" Myers,
. The court does not here determine on the merits whether there has been a violation of the procurement process, but merely finds that "there was a ‘substantial chance’ [plaintiff) would have received the contract award but for the alleged error in the procurement process.” ITAC,
. To the extent that defendant argues that it was prejudiced as a result of UEA's delay by having "to expend significant resources to review UEA’s proposal, defend against the GAO proceedings, issue a new solicitation, review Randolph's proposal, and award Randolph a contract," Def.’s Reply at 5, defendant’s argument also fails. These are all costs that CNCS would have incurred independent of any delay by plaintiff in filing its protest with this court. Cf. Wanlass,
In addition, to the extent that defendant argues that it was prejudiced simply because UEA ”wait[ed] until after ... [CNCS] award[ed] ... the contract to Randolph” to file this protest, Def.'s Mot. at 11, defendant's argument also fails. 28 U.S.C. § 1491(b)(1) specifically provides that "the United States Court of Federal Claims ... shall have jurisdiction to entertain [bid protests] without regard to whether suit is instituted before or after the contract is awarded."
. The court notes that defendant is conrect that "the fact that UEA may have been thought to be a good candidate for the contract in the initial stages of the process” in no way "obligate[d] the Government to actually contract with UEA.”
Def.'s Mot. at 23-24.
. Plaintiff is apparently referring to the meeting in early June 2004 when Mr. Boyd and Mr. Furnish went to the NCCC Southeast Regional Campus offices to discuss the follow-on contract.
See Def.’s SOF ¶¶ 31-32.
. “Given the diverse factual scenarios that appear before the Government Accountability Office (GAO), its decisions traditionally have been accorded a high degree of deference by the courts, particularly those involving bid protests." Hawaiian Dredging Constr. Co., Inc. v. United States,
. Volume I of plaintiff's proposal does not specifically address a number of the requirements listed in detail in the RFP or SOW, see AR at 365-86; none of the annexes provided for in the SOW is specifically referenced in Volume I of the proposal, see id..; nor does Volume I contain a summary of "how the requirements in the SOW will be accomplished” as requested by the RFP, id. at 273; see id. at 365-86; Transcript of Oral Argument (Tr.) at 42:15-43:17.
. Consideration of the recent performance of GS Tech, UEA’s likely subcontractor, was not improper. See 48 C.F.R. § 9.104-4(a) ("Determinations of prospective subcontractor responsibility may affect the Government's determination of the prospective prime contractor’s responsibility.”).
. The court further notes that
correct appraisal of the responsibility of a prospective contractor is clearly in the self-interest of the procuring agency; there is a built-in stimulus against error. If the determination is erroneous, and the contractor ultimately defaults on his obligation, the Government will likely suffer substantial delay and inconvenience, even though the defaulting party will be liable to answer in damages, including perhaps reprocurement costs.
Keco Indus., Inc. v. United States,
. Plaintiff cites In re Kari-Vac, Inc., No. B-210,609,
. The court has ruled that neither CNCS’s activity regarding the COC process, nor the SBA's decision to deny the COC, was arbitrary or capricious. For completeness, the court addresses in this footnote an additional issue raised and briefed by the parties that has not required decision by the court to resolve the case before it.
In responding to plaintiff's attack on the COC process, defendant first argues that "the SBA’s COC process was erroneously instituted in this case.... Therefore, any alleged errors in that process can provide no grounds for upholding UEA’s protest.” Def.’s Mot. at 31 (citations omitted). Indeed, according to defendant, "the COC process afforded UEA an extra opportunity to overcome its earlier faults, yet UEA failed [even with] this added opportunity." Id. Plaintiff initially agreed that, in the sole source context, COC review was not required, see Pl.’s Mot. at 33 ("Plaintiff ... does not dispute ... whether the non-competitive 8[(а)] procurement required [COC] review. We believe it did not ...."), but later reversed its view at oral argument, see Tr. at 26:25-27:2 (plaintiff's counsel stating that he disagrees that COC review is not required in this context). After extended discussion at oral argument about whether referral to the SBA for issuance of a COC is required by the applicable statutes or regulations in the context of a sole source 8(a) Program procurement, see Tr. at 26:10-39:21, the court sought supplemental briefing from the parties on this subject, see Order of October 14, 2005.
Primarily at issue is the SBA's interpretation of 15 U.S.C. § 637(b) (2000). As explained below, regulations and discussions in the Federal Register implementing this statutory provision appear to the court to be inconsistent with the statutory provision as well as with each other, making it unclear whether COC review is required in the context of a sole source 8(a) Program procurement. To be sure, the court agrees with defendant that "the SBA provided [COC] review to UEA in this case. Therefore, UEA cannot argue that it was denied COC review." Def.'s Suppl. Br. at 16. Moreover, the court has determined that this COC review was not arbitrary and capricious. Supra Part II.E.5. Thus, the court agrees with defendant that even if COC review was not required in this context, "UEA simply was not prejudiced by the extra layer of review it received," Def.'s Suppl. Br. at 16.
Because the court finds that plaintiff was not prejudiced by receiving COC review by the SBA, the issue of whether COC review is in fact required by the applicable statutes or regulations in the context of a sole source 8(a) Program procurement is not dispositive of this case. See Banknote,
15 U.S.C. § 637(b) provides, in pertinent part: It shall ... be the duty of the [SBA] and it is empowered, whenever it determines such action is necessary—
(7)(A) To certify to Government procurement officers ..., with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integ*33 rity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the [SBA].
15 U.S.C. § 637(b) (emphasis added). The regulations implementing this statutory authority are set forth in part at 13 C.F.R. § 125.5, entitled "Certificate of Competency Program.” 13 C.F.R. § 125.5 states, in pertinent part:
(a) General. (1) The Certificate of Competency (COC) Program is authorized under section 8(b)(7) of the Small Business Act. A COC is a written instrument issued by [the] SBA to a Government contracting officer, certifying that one or more named small business concerns possess the responsibility to perform a specific Government procurement (or sale) contract. The COC Program is applicable to all Government procurement actions____
(2) A contracting officer must, upon determining an apparent low small business offeror to be nonresponsible, refer that small business to [the] SBA for a possible COC, even if the next low apparently responsible offeror is also a small business.
(3) A small business offeror referred to [the] SBA as nonresponsible may apply to SBA for a COC.....
(c) Referral of nonresponsibility determination to SBA. (1) A contracting officer who determines that an apparently successful offeror that has certified itself to be a small business with respect to a specific Government procurement lacks any element of responsibility (including competency, capability, capacity, credit, integrity or tenacity or perseverance) must refer the matter in writing to the SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located____
(m) Effect of a COC. By the terms of the Act, a COC is conclusive as to responsibility. Where [the] SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility.
(n) Effect of Denial of COC. Denial of a COC by [the] SBA does not preclude a contracting officer from awarding a contract to the referred firm, nor does it prevent the concern from making an offer on any other procurement.
13 C.F.R. § 125.5 (emphasis to captions in original; other emphasis added).
A number of other federal regulations, including provisions of the FAR pertaining to small business programs (48 C.F.R. Chapter 1, Sub-chapter D, Part 19) and contractor qualifications (48 C.F.R. Chapter 1, Subchapter B, Part 9), discuss the SBA’s COC review program. 48 C.F.R. § 19.601 states, in pertinent part:
(b) The COC program empowers the Small Business Administration (SBA) to certify to Government contracting officers as to all elements of responsibility of any small business concern to receive and perform a specific Government contract....
(c) The COC program is applicable to all Government acquisitions. A contracting officer shall, upon determining an apparent successful small business offeror to be nonresponsible, refer that small business to the SBA for a possible COC, even if the next acceptable offer is also from a small business,
48 C.F.R. § 19.601 (emphasis to caption in original; other emphasis added). 48 C.F.R. § 19.809 states, in pertinent part: "If the results of the preaward survey or other information available to the contracting officer raise substantial doubt as to the firm’s ability to perform, the contracting officer must refer the matter to [the] SBA for [COC] consideration under subpart 19.6." 48 C.F.R. § 19.809 (emphasis added). 48 C.F.R. § 9.103 states, in pertinent part: "In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonre-sponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility." 48 C.F.R. § 9.103(b) (emphasis added). 48 C.F.R. § 9.104-3 states, in pertinent part: "If a small business concern's offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer shall refer the matter to the [SBA], which will decide whether or not to issue a [COC] (see subpart 19.6).” 48 C.F.R. § 9.104— 3(d)(1) (emphasis added). 48 C.F.R. § 9.105-2 states, in pertinent part: "If the contracting officer determines and documents that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures [for COC review] in subpart 19.6.” 48 C.F.R. § 9.105-2(a)(2) (emphasis added).
All of the passages in the Code of Federal Regulations emphasized above appear to the court to be consistent with the language in 15 U.S.C. § 637(b)(7)(A), which provides that "[a] Government procurement officer ... may not, for any reason specified in the preceding sentence [concerning elements of responsibility], preclude any small business concern or group of such concerns from being awarded [a specific government] contract without referring the matter for a final disposition to the [SBA].” However, the SBA, in amending its regulations in 1998 to provide for the applicability of COC review to non-responsibility determinations made in the context of 8(a) Program procurements, stated as follows:
Proposed § 124.507(b)(5) would add the Certificate of Competency (COC) procedures to competitive 8(a) procurements. Where a procuring agency contracting officer finds the ap*34 parent successful offeror for a competitive 8(a) procurement not to be responsible to рerform the contract, he or she would be required to refer the Participant to SBA for a possible COC under the procedures set forth in § 125.5 of this chapter. SBA seeks to make competitive 8(a) procurements as similar as possible to non-8(a) Government contracting procedures. COC procedures would not, however, he available for sole source 8(a) procurements. In most cases, the procuring agency would have selected the Participant for the sole source contract by assessing the firm's capabilities prior to offering the procurement to SBA. It is unlikely that the procuring agency would select a Participant, go through negotiations with the firm, and then find the firm not to be responsible. If that does happen, or if the procuring agency determines that a firm nominated by SBA for an open requirement cannot perform the contract, SBA would review the situation to determine whether it agrees with the procuring agency. If SBA agrees, it can nominate another Participant to perform the contract, if one exists that is found to be eligible and responsible for the requirement, or it can permit the agency to withdraw the requirement from the 8(a) program if an eligible and responsible Participant is not found. If SBA does not agree, it can appeal the procuring agency's decision to the head of the procuring agency pursuant to § 124.505.
Small Business Size Regulations; 8(a) Business Development/Small Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, 62 Fed.Reg. 43,584, 43,592 (Aug. 14, 1997) (emphasis added). Before the 1998 amendments, the SBA’s regulations specifically provided that the COC process did not apply either to sole source or to competitive 8(a) awards. See Minority Small Business and Capital Ownership Development Program, 54 Fed.Reg. 34,692, 34,709 (Aug. 21, 1989) (“The COC program does not apply to 8(a) contracts.”). Rather, in the 8(a) Program context, 13 C.F.R. § 124.313(a) (1998) provided that the SBA itself would "certify” that a firm "is competent to perform the requirement ... based on [the SBA’s] determination that the 8(a) concern with which it intends to subcontract is responsible to perform the requirement.” Therefore, until 1998, after "[a] Participant ... [was] determined by SBA not to be responsible to perform a sole source or competitive 8(a) contract,” that 8(a) Program Participant "[could] not seek the issuance of a Certificate of Competency,” id. § 124.313(c), because the SBA had itself already evaluated the Participant’s responsibility and made a responsibility determination.
As explained by defendant, “in 1998, instead of certifying the responsibility of 8(a) contractors to perform specific 8(a) contracts in evеry case, the SBA restructured the program so that participants could self-market to [government] procuring officers who would then primarily be responsible for making the necessary responsibility determinations." Def.'s Suppl. Br. at 12. In so doing, the SBA determined that COC review would be available to prospective competitive 8(a) contractors determined to be non-responsible by the government, but not to prospective sole source 8(a) contractors. 62 Fed.Reg. at 43,592 ("COC procedures would not, however, be available for sole source 8(a) procurements.”). Based on the foregoing, the GAO determined that
once CNCS determined that UEA was nonres-ponsible, and informed [the] SBA of that determination, [the] SBA, if it agreed with CNCS, should have allowed for the replacement of UEA with another 8(a) vendor .... If [the] SBA disagreed with CNCS regarding its determination that UEA was nonresponsible, the Administrator of [the] SBA could have appealed the CNCS contracting officer's responsibility determination to the head of the procuring agency. 13 C.F.R. § 124.505(a)(2). In short, we agree with [the] SBA that it erred in considering UEA for a COC because the COC process is not applicable to noncompetitive 8(a) acquisitions.
AR at 839; In re United Enter. & Assocs., No. B-295,742,
The court agrees with the GAO that the above discussion in the Federal Register appears to envision this result. Indeed, the facts of this case track those discussed in the Federal Register. Here, "the procuring agency ... selected] a Participant, [went] through negotiations with the firm, and then f[ou]nd the firm not to be responsible.” 62 Fed.Reg. at 43,592. However, the SBA's discussion in the Federal Register of the procedure to apply when an agency determines that a prospective sole source 8(a) Program contractor is non-responsible appears to the court to be inconsistent with the clear mandate of Congress that “[a] Government procurement officer ... may not, for any reason specified in the preceding sentence [concerning elements of responsibility], preclude any small business concern or group of such concerns from being awarded [a specific government] contract without referring the matter for a final disposition to the [SBA].” 15 U.S.C. § 637(b)(7)(A); cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Moreover, the Federal Register discussion appears to the court to be inconsistent with many other regulations currently in force. See, e.g„ 13 C.F.R. § 125.5(a)(1) ("The COC Program is applicable to all Government procurement actions.”); 48 C.F.R. § 19.601(c) ("The COC program is applicable to all Government acquisitions. A contracting officer shall, upоn determining an apparent successful small business offeror to be nonresponsible, refer that small business to the SBA for a possible COC ....”); 48 C.F.R. § 19.809 ("If the results of the preaward survey or other infor
Defendant argues that "the language [of 15 U.S.C. § 637(b)(7)(A) ] ... merely requires that a contracting officer refer [the] matter to the SBA for a final disposition ...; [i]t does not require, either implicitly or explicitly, that a COC procedure ... be employed by the SBA.” Def.'s Suppl. Reply at 4. Although the court agrees with defendant that the COC procedure is not specifically required by § 637(b)(7)(A), that law does contemplate that a "final disposition by the [SBA]” will be made. 15 U.S.C. § 637(b)(7)(A). Section 637(b)(7)(A) does not define "final disposition,” nor do any other statutory provisions or regulations relating to government contracting through the SBA of which the court is aware. See generally 15 U.S.C. §§ 631-657; 13 C.F.R. Ch. I. However, 13 C.F.R. § 125.5(a) implements the COC program and states that ”[t]he ... [p]ro-gram is authorized under [15 U.S.C. § 637(b)(7)].” Moreover, a COC determination appears to the court to be a "final disposition,” 15 U.S.C. § 637(b)(7)(A), by the SBA after an agency’s non-responsibility determination. See 13 C.F.R. § 125.5(m) (“By the terms of the [Small Business] Act, a COC is conclusive as to responsibility. Where SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility.”); 48 C.F.R. § 19.602-4(b) ("SBA COC[]s are conclusive with respect to all elements of responsibility of prospective small business contractors.”). In contrast, simply “appealing] the procuring agency’s decision to the head of the procuring agency," 62 Fed.Reg. at 43,592; see 13 C.F.R. § 124.505(a)(2) ("The Administrator of SBA may appeal ... to the head of the procuring agency ... [a] contracting officer’s decision to reject a specific Participant for award of an 8(a) contract after SBA's acceptance of the requirement for the 8(a) [Business Development] program____”), does not appear to the court to be such a "final disposition.”
The apparent inconsistency between 15 U.S.C. § 637(b)(7)(A) and various regulations implementing it, on the one hand, and the SBA’s discussion in the Federal Register, on the other, has been noted in expert commentary. See Ralph C. Nash & John Cibinic, Competition & Award: Certificate of Competency and 8(a) Contracts, 19 Nash & Cibinic Report, No. 6, 1130 (June 2005) (Nash & Cibinic), at 92 (Steve Feld-man, commenting on this issue in a letter to Professor Cibinic) ("To an extent, the[se] ... regulations require the referral of any small business concern to the SBA for a possible COC whenever the agency deems the firm nonrespon-sible. Thus, an important inconsistency exists in the FAR and the [Code of Federal Regulations] on the COC referral process for apparently non-responsible 8(a) concerns in sole-source 8(a) procurements.”); id. at 93 (Professors Nash and Cibinic, responding to Mr. Feldman’s letter) (”[W]e wonder whether the exception of sole-source 8(a) participants from COCs is authorized in view of the specific requirements of 15 [U.S.C.] § 637(b)(7)(A) .... ”).
In 1992, the Court of Appeals for the D.C. Circuit examined the applicability of COC review to the 8(a) Program. DAE Corp. v. Engeleiter,
It appears tо the court that, after the 1998 amendments by the SBA removed, inter alia, the regulation providing that the SBA makes the ultimate responsibility determination for all 8(a) Program contractors, 13 C.F.R. § 124.313(a) (1998), the policies articulated in DAE were potentially undermined in the context of sole source 8(a) procurements. In particular, under the procedure provided in 62 Fed.Reg. at 43,592, where an 8(a) concern negotiating for a sole source contract is determined to be nonresponsible by a contracting agency and that agency does not "refer the matter for a final disposition to the [SBA],’’ 15 U.S.C. § 637(b)(7)(A), but instead merely informs the SBA of its decision and awaits the possibility that the SBA will "appeal the procuring agency’s decision to the head of the procuring agency pursuant to § 124.505,” 62 Fed.Reg. at 43,592, the 8(a) concern is not afforded the "opportunity to have the SBA rather than a procuring agency determine [its] responsibility DAE,
Defendant states that DAE remains pertinent in that it illustrates that “the 8(a) and 8(b) [15 U.S.C. § 637(b)] contracting programs are distinctly different programs with different purposes.” Def.’s Suppl. Br. at 15. Defendant argues that "[f]rom this circumstance alone, the SBA could reasonably conclude that the 8(b) COC procedures are not mandated under Section 8(a).” Id. However, defendant cites, and the court has found, no statute, regulation, statutory or regulatory history, or case indicating that where a small business concern is operating under the 8(a) Program, the SBA may ignore the mandates of section 8(b). Nor does defendant account for the numerous current regulations cited in this footnote indicating that the COC process, implemented by section 8(b), see 13 C.F.R. § 125.5(a), is applicable to all government procurements. See generally Def.’s Suppl. Br.; Def.'s Suppl. Reply; see also Tr. at 37:3-38:19 (Ms. Lewis, SBA counsel, explaining that "[the COC provisions are] for the more general small business contracting [and] small business companies, as opposed to just 8(a) companies," and answering, in response to the court’s query as to “why [§ 8](b)(1)(A) is applicable to 8(a) contracts and [§ 8](b)(7)(A) is not," that she "can see [the court’s] point ____ It's just that the [SBA] has interpreted 637(b) ... not to be required ... for 8(a) contracting.”). Given the resolution of the case on other grounds, the court need not resolve the propriety of the government's contention that the SBA is not required to apply section 637(b) to an 8(a) Program contract.