# In the United States Court of Federal Claims

No. 20

- 972 C (Filed November 1 2

, 20 20 )

NOT FOR PUBLICATION

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AGC BISHOP

, a Joint *

V enture
, *

* Plaintiff, *

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v. *

* THE UNITED STATES, *

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Defendant

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ORDER

For the reasons stated on the record during the November 9, 2020 status conference, the government’s cross

- motion for judgment on the administrative record, ECF No. 21, is GRANTED , and plaintiff ’s motion s to supplement the administrative record and for judgment on the administrative record, ECF Nos. 19 & 20, are DENIED

. In summary, plaintiff AGC Bishop, a joint venture between Access General Contracting , Inc. (AGC) and Bishop Inc., was found by the Small Business Administration (SBA) not to be eligible for a U.S. Navy roofing contract

. Admin. R. (AR) 491. Competition for the contract was limited to small businesses certified under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a)(1), which have a bona fide place of business within the geographical boundaries serviced by the SBA’s San Diego Distri ct office. AR 1, 486

– 87.

The SBA properly found that AGC, the 8(a) B usiness D evelopment program participant, had not established a bona fide place of business prior to the date that plaintiff submitted its initial offer. Contrary to the arguments of plaintiff, although

it employ ed a joint venture to bid on an apparently consolidat ed contract, 15 U.S.C. § 644(e)(4)(B)(ii) does not allow it to use Bishop’s office to satisfy the geographic

limitation

--- because th is requirement must be met by the 8(a) participant, not the joint venture, see 13 C.F.R. §§ 124.3, 124.507( c) (2), and because a geographic- 2

-

preference does not involve any “capabilities” of an offeror. And with the definition of “bona fide place of busine ss” requiring a regularly

- maintained office with at least

one full

- time employee, and not counting “construction trailers or other temporary construction sites,” 13 C.F.R. § 124.3, plaintiff is incorrect in arguing that the

effective date of the AGC distri ct office may be backdated to some earlier time when

that firm conducted other business within the geographic limits. For this reason, its motion to supplement the administrative record with a contract awarded to AGC in September 2016 is DENIED , as consideration of such work is not necessary for effective judicial review of the protested decision. Cf. Axiom Res. Mgmt., In c. v. United States , 564 F.3d 1374, 1379

– 81 (Fed. Cir. 2009) (permitting supplementation only when necessary to avoid frustrating effective judicial review). †

Under the applicable regulation, AGC needed to establish that it had “a bona fide place of business within [the specific geographic] area prior to submitting its offer for the procurement,” 13 C.F.R. § 124.507(c)(2)(iv), and this was to be determined “as of the date the Participant submitted its initial offer which includes price,” 13 C.F.R. § 1 24.507(b)(5). Plaintiff ’s initial offer with a price was submitted on July 16, 2019, see AR 207

– 337, but it had yet to maintain its office within the relevant geographic area

--- having only submitted a lease application that same day,

AR 742

– 44. Thus , it was not arbitrary for the SBA to determine that the geographic requirement was not met. For these reasons, and as more fully explained during the November 9, 2020 status conference, the government’s cross

motion for judgment on the administrative record is GRANTED and plaintiff ’s motion for judgment on the administrative record is DENIED

. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Senior Judge

† The government’s motion to strike plaintiff ’s references to the AGC contract, see ECF No. 22 at 5, is DENIED as unnecessary and unwarranted, as the Court may simply ignore the references to extra

- record material.