After selecting the protester for an award, the agency learned that one of the protester’s JV members had been suspended. As a result, the CO found the protester was non-responsible. The COFC, however, thought the CO’s decision was precipitous.
PMCG CollaborateUp JV LLC v. United States, COFC No. 24-79
- Agency Excludes Protester – After reviewing proposals, the agency selected the protester. But shortly thereafter the CO told the protester it would not move forward with the award. The protester was a joint venture. The CO had learned that one of the protester’s JV members had been suspended for lack of business integrity. The CO believed the suspension meant the JV was no longer a viable offeror.
- Responsibility Determination or Technical Unacceptability – The protester argued the CO had exceeded his authority in eliminating the protester. The protester contended the CO violated the solicitation by stepping into the shoes of the evaluators and effectively finding that the suspension made the protester technically unacceptable. But the court found the CO’s decision was more properly understood as a nonresponsibility determination, which the CO was authorized to make. The CO’s decision had not applied technical evaluation factors. Rather, the CO had concluded that because of the JV’s relationship with a suspended contractor, he could not make an affirmative determination of responsibility.
- Post-Decision Developments – After the CO eliminated the protester, the suspension of the protester’s member was lifted. The protester argued the CO should have reconsidered the responsibility decision after the lifting of the suspension. The court agreed with the protester. To be sure, the suspension was lifted after the elimination decision. But the suspension was lifted before any orders were issued under the contract. The court thought the CO should have obtained more information about the suspension and the protester’s efforts to remove it before eliminating the protester.
- SBA Referral – Under SBA regulations, if a CO determines an apparently successful business is non-responsible, it must refer that business to the SBA for a possible certificate of competency. The protester argued the CO made a nonresponsibility determination and thus should have referred the matter to the SBA before eliminating the protester. But the court found that under the FAR, an agency is exempted from the referral requirement if a contractor has been suspended or debarred. Here, the contractor had been suspended, so the agency was not required to refer to SBA.
The protester is represented by Daniel J. Strouse of Cordatis LLP. The government is represented by Natalee A. Allenbaugh, Brian M. Boynton, Patricia M. McCarthy, and Corrine A. Niosi of the Department of Justice and by Rachel B. Cochran, Amy McQuade, and Eugene J. Benick of the U.S. Agency for International Development.
–Case summary by Craig LaChance, Editor in Chief
