the same issues as Walsh-Healey eligibility reviews.
Granting all reasonable inferences to plaintiff, I find that JGB submitted a proper Walsh-Healey pre-award protest even though JGB's Walsh-Healey eligibility protest was similar to its responsibility protest. As demonstrated above, the two areas coincide. I therefore reject the government's argument that JGB's Walsh-Healey pre-award protest was merely a responsibility protest with a different label. Nonetheless, there is absolutely no evidence that ATCOM and the SBA conducted inadequate reviews that prejudiced JGB.
A comparison of the responsibility reviews and JGB's pre-award protest allegations clearly demonstrates that the agencies addressed in substance each element of JGB's Walsh-Healey protest. The agency determinations were based on technical evaluations of Alpine's facilities and abilities and thorough reviews of Alpine's responsibility with respect to its manufacturing capabilities. See Uptain Decl. Ex. 7; Koppel Decl. Attach. The agency evaluations encompassed all of JGB's areas of concern, such as Alpine's experience, physical plant and personnel. Although plaintiff argues that the SBA review was inadequate in part because the agency did not conduct a field visit, the SBA report states that a visit to Alpine's facilities took place. Koppel Decl. Attach., at 2. The handwritten SBA notes on which JGB relies only state that the agency conducted no on-site review of Alpine's accounting system. Id. Finally, the SBA determined that Alpine was qualified to perform the contract when it issued a certificate of competency, which certifies that a business possesses a responsibility and/or eligibility to perform a specific Government procurement (or sale) contract." 13 C.F.R. § 125.5. Thus, JGB suffered no prejudice by the agencies' failure to explicitly consider its pre-award Walsh-Healey protest because the agencies reviewed in substance each of JGB's claims.
Plaintiff reminds me that in my decision denying JGB a preliminary injunction, I stated that I was "troubled" that ATCOM did not consider JGB's pre-award protests on the merits because ATCOM already had referred the case to the SBA. Dkt. No. 28, Dec. at 8-9. At least one district court has interpreted the SBA regulations regarding certificates of competency as imposing a heavy "forwarding burden" on the contracting officer to supply the SBA with any pertinent information regarding the small business. Marwais Steel Co., 871 F. Supp. at 1452. ATCOM may not have met this forwarding burden because it failed to send JGB's protests to the SBA. However, even if ATCOM failed in this regard, JGB suffered no prejudice, and the lack of prejudice is determinative. In Marwais Steel Co., the district court held that defendants were entitled to summary judgment because plaintiff suffered no prejudice, even though the agency should have made a Walsh-Healey determination before awarding its contract. Id. at 1454. The court held that the agency's eligibility finding seven months after the contract was awarded vitiated any possible prejudice to plaintiff. Id. JGB has an even weaker claim of prejudice, because both ATCOM and the SBA considered the substance of its challenges before Alpine received the contract.
2. Post-award protest
The government contends that because JGB's post-award protest was untimely, plaintiff suffered no prejudice from ATCOM's failure to process it. Although JGB argues that the post-award protest was timely, I disagree. The general regulations regarding contract disputes and appeals provide that "protests shall be filed not later than 10 working days after the basis of protest is known or should have been known, whichever is earlier." 48 C.F.R. § 33.103(b)(2)(1994).
The FAR regulations regarding Walsh-Healey protests do not provide a different deadline but permit protests to be filed up until the time of final contract completion. Id. § 22.608-6(a). An agency has discretion to consider untimely protests if the protestor shows good cause for the delay or if the protest raises issues "significant to the agency's acquisition system." Id. § 33.103(b)(2).
JGB admits that it based its post-award protest on information it discovered on October 11, 1994. Bernhardt Aff. PP 26-29. Plaintiff filed the protest on November 4, 1994, which is beyond the 10-day deadline. See id. Ex. 10. However, even if JGB's protest was timely, plaintiff suffered no prejudice by ATCOM's failure to process it because the post-award protest raises the same issues considered and determined by the agency in its pre-award survey. The post-award protest merely challenges again Alpine's physical plant capabilities and its representation to perform substantial fabrication of the product, which ATCOM and the SBA considered. See Uptain Decl. Ex. 7; Koppel Decl. Attach. Notably, the agencies reviewed and approved Alpine's written quotations for contract materials, some of which were the "new information" JGB discovered on October 11, 1994. Id. Thus JGB cannot raise any factual dispute tending to show that ATCOM's decision would have changed after considering the post-award protest.
With respect to both the pre-award and post-award protests, JGB suffered no prejudicial regulatory violation. Summary judgment for defendants is appropriate.
For the foregoing reasons, JGB's motion for summary judgment is denied. The government's motion for summary judgment is granted, and this action is dismissed.
IT IS SO ORDERED.
Dated: April 12, 1996
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge