The agency determined a bidder was nonresponsible. But the bidder was a small business, so the agency referred the matter to SBA for a certificate of competency (COC) determination. The agency told SBA the bidder wasn’t up to snuff. Despite the agency’s warnings, SBA found the bidder responsible. SBA directed the agency to make award to the bidder. A different bidder filed a protest, objecting to the SBA’s decision. The court denied the protest. The law authorizes the SBA to make the final call on responsibility determinations.
J.E. McAmis, Inc. v. United States, COFC No. 22-570
Background
The Army Corps of Engineers issued a solicitation for repair of a jetty. The solicitation listed special standards of responsibility: (1) marine construction on the west coast, (2) performance on government contractors worth at least $15 million, and (3) work placing stones weighing at least 25 tons.
The Corps received two bids from J.E. McAmis and Trade West Construction. The Corps determined Trade West was nonresponsible. Trade West lacked experience on the west coast, and it had not placed stones weighing at least 25 tons.
Trade West, however, was a small business. Accordingly, the Corps referred the matter to the Small Business Administration for a COC determination. The Corps stressed to the SBA that it did not think Trade West could handle a project of this magnitude. Indeed, the Corps intimated that were SBA to find Trade West responsible, it would be substituting its judgment for that of the Corps’ experts.
Despite these warnings, SBA issued a COC finding Trade West responsible. The SBA directed the Corps to award the contract to Trade West. The Corps complied.
The other bidder, McAmis, filed a protest with the Court of Federal Claims.
Analysis
Jurisdiction Over COC Determinations
In its complaint, McAmis argued SBA had ignored the solicitation in making its responsibility determination. The government moved to dismiss this argument, reasoning the court lacked jurisdiction to review challenges to a COC.
The court agreed with the government. The Small Business Act confers power to the SBA to make a final decision on responsibility. While the court can review the SBA’s refusal to grant a COC, it does not have jurisdiction to review a decision to grant a corticate. Thus, the court lacked jurisdiction to invalidate the certificate.
Responsiveness v. Responsibility
McAmis argued the Corps should have found Trade West non responsible for failing to provide information required by the responsibility criteria. But the court found McAmis was confusing responsiveness with reasonability.
Responsiveness focuses on whether an offeror has complied with the solicitation. Responsiveness focuses on the contents of the bid. Responsibility, on the other hand, is a review of the offeror’s ability to satisfy contractual commitments. An agency may seek information outside of the bid to determinate responsibility.
Here, solicitation clearly stated the criteria were “standards of responsibility.” Thus, the Corps was entitled to consider matters outside the bid in assessing these standards. While Trade West had to submit additional information to prove responsibility that didn’t make the company nonresponsible. McAmis had improperly construed these responsibility criteria as a responsiveness requirement.
Consideration of Pre-Bid Questions
McAmis contended the Corps’ COC referral to SBA was flawed because the Corps did not provide SBA with pre-solicitation questions posed to bidders. But the FAR does not require an agency to provide SBA with pre-bid questions when making a COC referral.
Special Standards of Responsibly
McAmis reasoned SBA had erred in not applying the solicitation’s specific responsibility standards. The court reasoned SBA is bound to apply the FAR’s general responsibility criteria when making a determination. But the SBA is not bound by any specific criteria developed by an agency for a particular solicitation.
McAmis is represented by Paige B. Spratt of Schwabe Williamson & Wyatt. The intervenor, Trade West, is represented by Jacob W. Scott of Smith Currie & Hancock, LLP. The government is represented by Meen Geu Oh of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
