The Small Business Act gives the Small Business Administration (SBA) the power to determine small business responsibilities. The Government Accountability Office (GAO) has determined that a procurement agency determines that a small business is ineligible for an award due to irresponsibility or If the final accountability criteria are not met, the agency must escalate the matter to the SBA for a final decision as part of its Certificate of Competency (COC) process. In two recent cases, GAO spoke on a jurisdictional decision — in both cases it dismissed small business protests and argued that the conclusions of the assessment amounted to a finding of jurisdiction that the agency should have referred the protester to a COC.
in the A. Prentice Ray & AssociatesB-419024.5, B-419024.6, December 22, 2021, APRA protested the General Services Administration (GSA) decision not to award any of eight 8(a) Subpool 2 orders under the One Acquisition Solution for Integrated Services (OASIS) small to be awarded Multi-price business contract solution.
The solicitation stipulated that vendors could address schemes, certifications, and approvals for up to 2,000 points out of a potential 10,000. These are “not minimum or mandatory requirements”, but providers who submit the information would be “considered preferential”.
APRA itself rated its 8(a) Subpool 2 proposal with 5,200 points. However, the GSA found that APRA scores 500 points for an approved purchasing scheme, 200 points for an approved forward pricing rate agreement (FPRA), forward pricing rate recommendation (FPRR), or preliminary billing rates, and 200 points for an acceptable estimation system had not established . Therefore, the GSA scored APRA only 4,300 points, which was below the lowest score (4,475 points) of the eight highest technically rated proposals with a fair and reasonable price.
APRA protested the GSA’s alleged failure to submit its proposal for Subpool 2 for COC determination to the SBA. According to APRA, the GSA downgraded its proposal based on factors of financial performance –iewho deducted 900 points from APRA’s self-assessment for failing to demonstrate that it had an approved purchasing system, FPRA, or an acceptable estimation system – “was tantamount to an adverse liability finding for an otherwise successful vendor.”
GAO denied the protest, noting that APRA’s proposal was not barred from consideration for award because the contracting officer had found a lack of jurisdiction. The mere fact that 900 points were deducted from its score because it had no evidence of its financial ability was not an issue of responsibility.
Interesting litigation aside – APRA had a previous GAO protest which was dismissed while another protest from the same procurement was pending at COFC. After the resolution of the COFC protest, APRA filed a second protest with GAO. GAO denied that protest after GSA indicated that it would take corrective action in the form of a referral from APRA to SBA “for a possible COC determination.” GSA’s implementation of the corrective action consisted of submitting documents to the SBA for a possible COC stating: “The unsuccessful bidder, APRA, has claimed that the GSA submitted its proposal for a COC provision to the SBA should have referenced. Accordingly, GSA is now doing so, although GSA has not determined that the Bidder was not responsible.” (Not surprisingly, the SBA did not conduct a COC review, as SBA’s rules provide that only a contract officer can issue a valid non-responsibility finding for a COC.) However, this led APRA to claim that the GSA had not implemented the promised corrective actions. GAO bypassed this issue and found no basis to uphold it, as APRA’s challenge to the evaluation of their proposal was unfounded.
in the Monbo Group International, B-420269, B-420269.2, January 11, 2022, Monbo also protested the Army’s failure to refer it for a COC. In this lowest-priced, technically acceptable procurement, the Army had found that both the lowest-priced proposal and the second-lowest-priced proposal (which was from Monbo), while technically acceptable, were unrealistically low. Monbo argued at GAO that the Army’s determination that its price was unrealistic constituted a negative accountability decision that, given its status as a small business, should be referred to the SBA for COC assessment.
GAO reiterated its position that where a solicitation provides a realistic pricing analysis, an agency’s concern about low pricing as a result of a realistic analysis constitutes an evaluated assessment of a vendor’s understanding of the requirements of the solicitation, and not a finding of irresponsibility. GAO contrasted that when a solicitation does not include a relevant evaluation criterion related to realism or understanding, and determining that a vendor’s price is underpriced in a fixed-price contract is generally the vendor’s responsibility. As such, GAO denied this reason for protest.
(This case also had a certain procedural twist, as the Army dismissed Monbo’s COC mediation claim because there was a technically acceptable lower priced supplier whose proposed price was also found unrealistic and that company would be entitled to a referral to SBA under the COC process, if GAO supported Monbo’s protest GAO rejected this rejection argument, stating, “Given that this other bidder has been found by the agency to be unsuitable for award and it is not clear that he otherwise found responsible by the SBA, we see no basis to consider them an intervening bidder “up for award” prior to Monbo.)