DISMISSED IN PART AS UNTIMELY FILED, IN PART FOR FAILURE TO STATE A VALID BASIS OF PROTEST, AND IN PART FOR LACK OF JURISDICTION: September 30, 1994 GSBCA 12978-P ACCURATE INFORMATION SYSTEMS, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and INFORMATION MANAGEMENT CONSULTANTS, INC., and MANAGEMENT SYSTEMS DESIGNERS, INC., Intervenors. Christopher M. Collins, McLean, VA, counsel for Protester. Donald M. Suica, Robert H. Humphries, Herwood R. Roberson, and Lori R. Larson, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. William A. Roberts III, Lee Curtis, Jerone C. Cecelic, and Alice M. Crook of Howrey & Simon, Washington, DC, counsel for Intervenor Information Management Consultants, Inc. William W. Goodrich, Jr., Craig S. King, and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Intervenor Management Systems Designers, Inc. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. DANIELS, Board Judge. Accurate Information Systems, Inc. (Accurate), protests the award by the Department of the Treasury's Internal Revenue Service (IRS) of two contracts for the supply of Treasury Information Processing Support Services (TIPSS). Accurate characterizes as improper the IRS contracting officer's determination that Accurate is not responsible to perform under a contract for the work. This determination was made consequent to a finding that the firm has significant financial weakness; the protest specifically challenges this finding. The protest also takes issue with the Small Business Administration's (SBA's) denial of a certificate of competency (COC) to Accurate. Further, the protest alleges that the contracting officer acted improperly in refusing to consider additional information which allegedly reflected favorably on Accurate's financial capability. In additional counts, Accurate contends that neither of the offerors which ultimately received contracts was eligible for award. According to the complaint, one of the proposed subcontractors to Information Management Consultants, Inc. (IMC), had an organizational conflict of interest, given other work it is performing for the IRS; and Management Systems Designers, Inc. (MSD), has so little relevant experience that its management proposal should have been given a low score and the contracting officer should have determined that the firm is not responsible to perform its contract. The IRS moved to dismiss the protest for lack of jurisdiction. The IRS maintains that the principal protest count is directed not toward any actions of the contracting officer, but rather to the SBA's consideration of whether to approve a COC for Accurate, and subsequent decision not to issue that COC. According to the IRS, the Board lacks authority to review this action of the SBA. IMC and MSD both intervened in the protest. In its notice of intervention, MSD urged the Board to find that Accurate is not an interested party and that the complaint fails to state a legally sufficient basis of protest. IMC and MSD also filed memoranda in support of the IRS's motion to dismiss, and on the basis of the facts advanced in that motion, moved separately for summary relief. Accurate filed an opposition to the motion to dismiss, as well as a response to the filings by the two intervenors. The count dealing with Accurate's own responsibility is susceptible to three different interpretations. We hold that one aspect of the count is untimely filed, a second may not be presented to the Board, and the third, because Accurate has not pled facts sufficient to support it, does not state a valid basis of protest. Because we will not consider the merits of Accurate's responsibility to perform a TIPSS contract, the determination of nonresponsibility stands. Accurate consequently cannot receive a contract even if its allegations as to the ineligibility of the two awardees is correct. Accurate is perforce not an interested party to pursue those allegations, and the allegations must be dismissed for lack of jurisdiction. Findings of Fact Contracts could be awarded in the TIPSS competition, as they may be in Government procurements generally, only to responsible prospective contractors. Respondent's Motion to Dismiss for Lack of Jurisdiction (Motion to Dismiss), Exhibit A; 48 CFR 9.103 (1993) (FAR 9.103). An essential element of responsibility is the prospective contractor's having adequate financial resources to perform the contract, or the ability to obtain them. FAR 9.104-1(a). Accurate submitted a proposal in response to the TIPSS solicitation. In considering whether Accurate should be awarded a contract, IRS assigned a Business Management Evaluation Team to appraise the adequacy of Accurate's financial resources, and also tasked the Defense Contract Audit Agency (DCAA) with developing information relevant to this matter. Both the Evaluation Team and the DCAA raised significant concerns about Accurate's financial capability to perform a contract. Among the problems identified was the existence of a significant federal tax lien. Motion to Dismiss, Exhibits B, C. IRS mentioned these concerns to Accurate on July 1, and again on August 3, 1994. Id., Exhibits D, F. In response, Accurate provided information on July 27 and August 9 about its "Revitalization Plan," which the firm's president says had been in effect for about one year and was progressing according to schedule. Accurate's Opposition to Respondent's Motion to Dismiss, Exhibit E (Declaration of Stephen Yelity, Accurate's president) (Yelity Declaration), 6, 10. On August 10, the contracting officer determined that Accurate's poor financial capacity made the firm not responsible to perform a TIPSS contract. Motion to Dismiss, Exhibit E. By regulation, whenever a contracting officer determines that a small business concern is nonresponsible, but otherwise eligible for award of a contract, he shall refer the matter to the SBA. FAR 9.105-2(a)(2). The SBA shall then "[i]nform the . . . concern of the contracting officer's determination and offer it an opportunity to apply to the SBA for a certificate of competency." FAR 19.602-2(a)(1); see also 13 CFR 125.5(d), (e) (1994). A COC is a certificate which states that in the SBA's judgment, "the holder is responsible . . . for the purpose of receiving and performing a specific Government contract." FAR 19.601(a); see also 13 CFR 125.5 (1994). On the same day that the IRS contracting officer made his determination of nonresponsibility, he informed the SBA of the decision. Motion to Dismiss, Exhibit E. The SBA told Accurate about this action on August 15; it invited the firm to apply for a COC. Complaint, 12; Yelity Declaration, 11. Accurate accepted the invitation and supplied financial information to the SBA. Complaint, 13; Yelity Declaration, 12. By letter dated September 1, but sent by facsimile transmission on September 2, the SBA told the IRS that it had "reviewed the application for a Certificate of Competency (COC) filed by [Accurate]" with regard to the subject solicitation. The SBA said that it had declined to issue the COC. Motion to Dismiss, Exhibit G. Accurate's president says that at about 11 a.m. on September 2, he telephoned the IRS "trail boss" who was in charge of the TIPSS procurement to discuss the SBA's action, and that he informed the IRS official that Accurate's Revitalization Plan was on track. Yelity Declaration, 21. On the afternoon of September 2, the trail boss informed MSD and IMC that they were the apparent successful offerors for the contracts at issue in this case. He asked them to come to his office on the next business day, September 6, to review and sign contracts. Declaration of John H. Ely (Sept. 22, 1994) (Ely Declaration), 3. On the morning of September 6, as the MSD and IMC representatives were reviewing their firms' contracts, an SBA associate administrator called the IRS official and asked that the IRS withhold contract awards for a day or two, so that the SBA could review new information Accurate was about to provide relative to its financial responsibility. Ely Declaration, 4. The trail boss relayed this information to the contracting officer. Id., 5; Declaration of Paul Edgeworth (Sept. 23, 1994) (Edgeworth Declaration), 5. The contracting officer then returned to the room where the MSD and IMC representatives were located; he found that they had both signed their contracts. Edgeworth Declaration, 4, 6. At 3:19 p.m. on September 6, an IRS official who was not involved with the TIPSS procurement sent the SBA a memorandum stating that he had approved an arrangement with Accurate for the payment of back taxes owed by the firm, and that the arrangement was subject to review by IRS management. Motion to Dismiss, Exhibit H. On September 7, the contracting officer received a letter from Accurate, attached to which were two documents pertaining to the firm's financial capability. One of these documents was the memorandum regarding payment of back taxes; the other was a letter from a bank, dated August 18, regarding a line of credit to Accurate. Motion to Dismiss, Exhibit H; Edgeworth Declaration, 8; Yelity Declaration, 32. Accurate admits that it had not previously provided to the contracting officer either a notice of tentative commitment regarding the arrangement for payment of back taxes (which allegedly was given on August 23) or the bank letter. The firm's president had assumed that the SBA would forward these documents to the contracting officer. Yelity Declaration, 32. Accurate's protest was filed on September 16. Discussion Accurate plainly believes that its financial capability is sufficient to make it a responsible prospective contractor under the TIPSS program. The protest challenges the Government's contrary determination in three different ways. As a matter of law, none of these allegations may be considered on its merits. In paragraph 15 of the complaint, Accurate contends, "The IRS erred in failing to find Accurate to be a financially responsible bidder." In its opposition to the IRS's motion to dismiss, Accurate states that the protest maintains that "the contracting officer's determination of nonresponsibility was unreasonable in that he did not understand Accurate's financial information at the time he made his determination, [and] that he misapplied the FAR [Federal Acquisition Regulation] in making that determination." Opposition at 5-6. By its own admission, Accurate learned on August 15 that the contracting officer had determined that Accurate was not a responsible prospective TIPSS contractor. The protest was not filed until more than a month after that date. Our Rules of Procedure provide that a ground of protest which is based on anything other than alleged improprieties in a solicitation shall be filed within ten working days after the basis for that ground is known or should have been known, whichever is earlier. Rule 5(b)(3)(ii). To the extent that the protest challenges the contracting officer's determination of nonresponsibility, it was filed too late to be heard. OAO Corp. v. General Services Administration, GSBCA 12718-P, 94-2 BCA 26,662, 1994 BPD 16. Paragraph 13 of the complaint refers to the SBA's denial of a COC and alleges that the SBA's basis for that denial was "erroneous." To the extent that Accurate may be protesting that the SBA's determination violated a statute or regulation, the Board does not have jurisdiction to hear the case. Statute authorizes us to review, in certain circumstances, a "decision by a contracting officer." 40 U.S.C. 759(f)(1) (1988). When the SBA takes an action involving a Federal agency procurement, and authority to take that action is specifically vested in the SBA rather than in the agency's contracting officer, the SBA is not acting in a contracting officer's capacity or under his supervision, so the Board does not have authority to review the SBA's determination. QSoft, Inc. v. Small Business Administration, GSBCA 12558-P, 94-1 BCA 26,443, 1993 BPD 261; Integrated Systems Analysts, Inc., GSBCA 10750-P, et al., 91-1 BCA 23,477, 1990 BPD 387; accord, R/P International Inc., B-257785, et al. (July 14, 1994) (General Accounting Office also declines to make this sort of review). The SBA's authority regarding the issuance of COCs is specified by statute, 15 U.S.C.A. 637(b)(7) (1994), and implementing regulation, 13 CFR 125.5 (1994), as separate from any authority held by a contracting officer. We consequently have no jurisdiction to review any decision by the SBA regarding the issuance of COCs. Paragraph 24 of the complaint states that Accurate attempted to respond to IRS's expressed concerns about the firm's financial capability by undertaking to obtain a new line of credit agreement with a bank and to enter into an arrangement with IRS regarding disposition of the tax lien. The paragraph says further, "Information as to these developments was known to the procurement office of the IRS during the COC process before the SBA." Paragraph 16 of the complaint asserts that "[t]his protest is timely filed in that it is filed within ten days of Accurate learning that the contracting officer was ignoring or misevaluating the additional supporting financial information." Accurate is apparently not contending that the IRS acted illegally in awarding contracts promptly once it learned that the SBA had rejected a COC for Accurate. Rather, the protest seems to be against the contracting officer's failure to reevaluate Accurate's responsibility, based on information provided to him after he made his initial determination. This could be a valid basis of protest; regulation permits a contracting officer who has found a small business nonresponsible and so informed the SBA, and later receives new information, to reverse his determination, award a contract, and thus moot any consideration by the SBA of giving the firm a COC. FAR 19.602-4(a). Accurate does not plead any facts which might support the contention that this rule has been violated, however. No such facts are contained in a long declaration submitted by protester's president, addressing matters he believes relevant to the IRS's motion. To the contrary, the declaration states that between the date on which the contracting officer made his determination of nonresponsibility and the date of award, the only information Accurate gave the contracting office about the firm's financial capability was that a Revitalization Plan was proceeding as planned -- something Accurate had also told the agency before the determination was made. The declaration contains an admission that the only new information Accurate gave the contracting office was provided after the date of award -- too late for it to have had any effect. Thus, to the extent that the complaint alleges that the contracting officer violated law by not reconsidering his determination in the face of newly- provided information, Accurate has shown no valid basis for protest. Having examined all three facets of the protest's challenge to the determination that Accurate is not a responsible prospective contractor for the TIPSS program, we conclude that we cannot proceed to an evaluation of the merits of the charge. Accurate consequently remains ineligible for award of a TIPSS contract. Any violation of law the IRS may have committed as to the eligibility of either of the contractors therefore cannot affect Accurate's direct economic interest. Without such an interest, Accurate is not an interested party to pursue the grounds of protest involving IMC and MSD. 40 U.S.C. 759(f)(9)(B) (1988); United States v. International Business Machines Corp., 892 F.2d 1006, 1010 (Fed. Cir. 1989). The Board does not have jurisdiction to consider protests filed by other than interested parties. Decision To the extent that Accurate's challenge to the determination that Accurate is not a responsible prospective TIPSS contractor alleges that the contracting officer's initial determination was improper, this count is DISMISSED AS UNTIMELY FILED. To the extent that the challenge alleges that the SBA's denial of a COC was improper, the count is DISMISSED FOR LACK OF JURISDICTION. To the extent that the challenge alleges that the contracting officer violated law by failing to reverse his determination after considering information provided to him after the date of that determination and before the date of award, the count is DISMISSED FOR FAILURE TO STATE A VALID BASIS OF PROTEST. The counts which allege that neither of the offerors that ultimately received contracts was eligible for award are DISMISSED FOR LACK OF JURISDICTION. The Board's order suspending the IRS's authority to proceed with performance of the awarded contracts lapses with the issuance of this decision. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge