Protest that the Small Business Administration failed to consider vital information bearing on the awardee’s responsibility in issuing a Certificate of Competency is denied, where the solicitation did not set out definitive responsibility criteria and where there is no evidence that the procuring agency provided incorrect information, or withheld information, from the SBA.
MPC Containment Systems LLC protested the Defense Logistics Agency’s award of a contract for collapsible fuel storage tanks to North American Fuel Tanks Inc., alleging that the Small Business Administration failed to consider vital information bearing on NAFTI’s responsibility when it issued the awardee a Certificate of Competency.
MPC argued that SBA’s COC is invalid, because it was based on unverified information. As part of her responsibility determination, the contracting officer requested a pre-award survey of NAFTI by the Defense Contract Management Agency. MPC alleged that the survey results generally parroted information supplied by NAFTI and that the surveyors did not verify most of the crucial information, including that related to the past performance of NAFTI and its sister company and predecessor, Reliance Aeroproducts International. Therefore, according to MPC, SBA failed to consider vital information because the survey results were not verified.
While GAO will review COC decisions only under narrow circumstances, MPC argued the exception applies. Generally, GAO will consider the protest only where the solicitation contains definitive responsibility criteria and the issue raised concerns the competitor’s compliance with those criteria. MPC argued that the RFP incorporated by reference FAR 9.104, which rendered the enumerated requirements of that provision definitive responsibility criteria.
GAO disagreed, finding that such solicitation provision establish performance requirements that must be satisfied by the successful offeror during contract performance and do not affect the award decision, except as a matter of a contractor’s general responsibility. In contrast, definitive responsibility criteria are specific and objective standards designed to measure a prospective contractor’s ability to perform the contract. GAO agreed with DLA and SBA that the provision referencing FAR 9.104 identified only the FAR’s general responsibility standards and did not identify specific and objective standards.
Further, the RFP did not include technical evaluation factors, and offerors were not required to submit technical proposals or specific information regarding past performance or experience that could be objectively measured. Rather, the RFP afforded the contracting officer the discretion to request a pre-award survey, including financial, technical, production, or managerial information.
MPC argued that the provision was intended to limit which offerors were eligible to compete for the procurement, but GAO noted the provision did not require offerors to submit any information in order to compete. Because the RFP did not include definitive responsibility criteria, GAO declined to consider the protester’s allegation that SBA did not take into account “vital information” bearing on NAFTI’s responsibility when issuing a COC.
Further, GAO found MPC failed to show that the alleged error by SBA in issuing the COC was caused by DLA’s failure to adequately inform the SBA of the information. In referring her nonresponsibility determination to the SBA for review, the contracting officer provided SBA a copy of her nonresponsibility determination, the solicitation (including all amendments), NAFTI’s proposal, the abstract of offers, DCMA’s survey report, and various technical data, including specifications for the fuel bladders. GAO found that the protester failed to identify any information that was withheld from SBA nor any that was presented in a misleading or inaccurate manner.
MPC Containment Systems LLC is represented by Benjamin Beiler. The government is represented by Eric C. Selke, Pamela Cooper, and Robin Ciulla, Defense Logistics Agency, and Meagan K. Guerzon, Small Business Administration. GAO attorneys Pedro E. Briones and Peter H. Tran participated in the preparation of the decision.