Regardless of Whether You’re Responsible, Did You “Deliver the Mail”?
September 8, 2017
By: Eric Whytsell
Sometimes small business offeror’s lack of success in a competitive procurement results from questions about whether it is “responsible” (i.e. has the ability to perform). When a small business’ proposal is found unacceptable due to a responsibility-related issue, the procuring agency must refer the matter to the Small Business Administration (SBA), which has the ultimate authority to determine the responsibility of small business concerns. But, as the recent Government Accountability Office (GAO) decision in Sea Box, Inc., B-414742 (September 6, 2017) makes clear, this rule does not amount to a free pass. In order to have the SBA consider the responsibility issue, an offeror must otherwise comply with the solicitation requirements.
The matter involved a small business challenge to a contract award by the General Services Administration (GSA) for relocatable simulator shelters (RSS) for the Air Force Life Cycle Management Center Simulators Program Office and Air Force Special Operations Command (AFSOC) to house training devices. As relevant here, the request for proposals (RFP) provided that failure on any single pass/fail criteria would render a proposal ineligible for award, with no further evaluation performed by the government. It also identified two pass/fail criteria, one of which required proposals to include a statement confirming that the proposed RSS solution had been rated to operate at a secret classification level in accordance with solicitation requirements. The RFP went on to provide that, in order to show that they met this criterion, offerors must submit “documentation that demonstrates in writing how its solution complies with DOD Manual 5200.01 “Information Security Program: Protection of Classified Information,” and DOD Instruction 8500.01 “Cybersecurity” and documentation that shows its product has been previously certified/accredited by a government security agency such as the Defense Intelligence Agency, Central Intelligence Agency or Defense Security Service to a minimum level of SECRET, Open Storage.
Upon reviewing Sea Box’s proposal, the GSA determined that it had failed to meet the secret classification pass/fail criteria because it did not submit a statement that confirmed the RSS solution provided had been rated to operate at the required secret classification level. After being notified of the contract award to another offeror and receiving a debriefing, Sea Box protested, arguing in part that because the agency eliminated its proposal from the competition based on responsibility-related criteria, its unacceptable proposal should have been referred to the SBA. More particularly, Sea Box contended that its alleged failure to submit the required documentation relates to Sea Box’s responsibility. In response the agency argued that the rejection of Sea Box’s proposal was not based on Sea Box’s responsibility, but was instead based on whether Sea Box’s product met the salient characteristics in the RFP. The GAO agreed with the agency.
As an initial matter, the GAO noted there was no question that Sea Box failed to provide the required documentation. Given that, the GAO made short work of the protester’s contention that the agency was required to refer the unacceptable proposal to the SBA. As the GAO went on to explain, notwithstanding the requirement to refer to the SBA any small business proposal found to be unacceptable under a responsibility-related factor, such referral is not required when an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility. Nor is referral to the SBA required where the finding of unacceptability is based on the offeror’s failure to submit specific documentation required by the solicitation, even if the factor on which technical unacceptability is based arguably relates to the offeor’s responsibility. In this case, the GAO found both (i) that the documentation requirement was not responsibility related, since it did not pertain to the offeror’s ability to perform; and (ii) that the protester’s proposal was rejected as technically unacceptable because it lacked provide required documentation. Either way, referral to the SBA was not required.
This decision provides a stark reminder of the importance of strict compliance with solicitation requirements, which operate as a sort of gateway to the competition: if you don’t meet the requirements, you may not go any further in the procurement. This is particularly true of pass/fail criteria. But in either case, lack of compliance can rob an offeror of the opportunity to benefit from other procurement rules. If you want to be in the competitive mix and have a real chance at contract award, you must first make sure to “deliver the mail” by doing all the solicitation requires.
Eric Whytsell is responsible for the contents of this Article.
© 2017 Jackson Kelly PLLC