CONTRACTOR RESPONSIBILITY AND ELIGIBILITY FOR AWARD . . .

(a) The Government may award up to two (2) contracts to the offerors that:

(1) submits [sic] the lowest evaluated offer if award is based on price only, or the offer that provides the best value to the Government if factors in addition to price are identified elsewhere in this solicitation; and

(2) submits [sic] a bid or proposal that meets all the material requirements of this solicitiation, and

(3) meets [sic] all the responsibility criteria at FAR 9.104.

(b) To make sure that you meet the responsibility criteria at FAR 9.104 we may:

(1) arrange a visit to your plant and perform a preaward survey;

(2) ask you to provide financial, technical, production, or managerial background information.

(c) If you don't provide us with the data we ask for within 7 days from the date you receive our request, or if you refuse to have us visit your facility, we may determine you nonresponsible.

(d) If we visit your facility, please make sure that you have current certified financial statements and other data relevant to your bid or proposal available for our team to review.

Supp. Protest at 2; RFP at 104 (emphasis in original). According to MPC, by explicitly incorporating a reference to section 9.104, the solicitation "made the enumerated requirements of FAR 9.104" definitive responsibility criteria. Protester's Comments at 6.

We disagree with the protester that this provision establishes definitive responsibility criteria. Solicitation provisions such as the one above 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. See, e.g., HBC Mgmt. Servs., Inc., B-407585, Jan. 14, 2013, 2013 CPD ¶ 32 at 4. Definitive responsibility criteria are specific and objective standards designed to measure a prospective contractor's ability to perform the contract. Reyna-Capital Joint Venture, B-408541, Nov. 1, 2013, 2013 CPD ¶ 253 at 2. Here, as DLA and SBA both point out, the provision above only identifies the FAR's general responsibility standards and do not identify specific and objective standards. COS/MOL at 4-5; SBA's Comments at 4.

While traditional responsibility factors may be used as technical evaluation criteria in a negotiated procurement when the agency's needs warrant a comparative evaluation of those areas, here the RFP did not include technical evaluation factors. RFP at 103-5; see, e.g., Hughes Georgia, Inc., B-272526, Oct. 21, 1996, 96-2 CPD ¶ 151 at 5. Moreover, offerors were not required to submit technical proposals or specific information regarding past performance or experience that could be objectively measured. See RFP at 96-105. Rather, the RFP, by its plain terms, afforded the contracting officer discretion to request a pre-award survey, including financial, technical, production, or managerial information in that regard. Id. at 104.

MPC's arguments to the contrary are unpersuasive. For example, MPC contends that the provision above was intended to limit which offerors were eligible to compete for the procurement. Protester's Comments at 6. However, the provision did not require offerors to submit any information in order to compete. See, e.g., Action Serv. Corp., B-246413, B-246413.2, Mar. 9, 1992, 92-1 CPD ¶ 267 at 3-4 (denying protest of a small business' responsibility determination where no submissions were requested or contemplated to establish compliance with the RFP criteria in question). Furthermore, contrary to MPC's assertion, the RFP was not amended to "explicitly" incorporate the reference to FAR section 9.104. See Protester's Comments at 7. Instead, the record shows that the RFP, as originally issued, incorporated the same FAR reference, in the same solicitation provision. Compare RFP (original version) at 103, with RFP Amend. 2 at 2, and RFP (conformed version) at 4-5, 104.

Here, because we find that the RFP did not include definitive responsibility criteria, we will not consider the protester's allegation that SBA did not take into account "vital information" bearing on NAFTI's responsibility when issuing a COC. Integrity Mgmt. Servs., Inc., supra (noting that our Office will not consider protest that SBA failed to consider vital information in issuing a COC, where the alleged vital information does not concern awardee's compliance with a definitive responsibility criterion). Accordingly, we have no reason to question SBA's issuance of a COC to NAFTI.

In any event, even if MPC were correct (it is not) that the RFP provision above establishes definitive responsibility criteria, the protester's allegations still do not meet the requirements for invoking our jurisdiction to review SBA's issuance of a COC. In this respect, the protester has not shown that the alleged error by SBA in issuing the COC was caused by DLA's failure to adequately inform the SBA of the information. E. F. Felt Co., Inc., B-289295, Feb. 5, 2002, 2002 CPD ¶ 37 at 4. The record here reveals that, 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. AR, Tab 8, DLA Referral Letter to SBA, at 1-2; CO's Decl. ¶ 6

We thus agree with DLA that the "protester has not identified any information that was wrongfully withheld from SBA, nor any information that was presented in a misleading or inaccurate way. [MPC] simply do[es] not agree with the results of the [pre-award survey] or the methodology followed in compiling the information . . . ." COS/MOL at 6. MPC's disagreement with the survey assessment does not establish that DLA's presentation of information to the SBA was inaccurate, incomplete, or misleading. Vetsummit, LLC, B-405187, Aug. 29, 2011, 2011 CPD ¶ 172 at 4 (denying protest where the protester's arguments reflect only its disagreement with the agency's assessment, which is inadequate to invoke our Office's limited jurisdiction to review SBA's COC determination); LCPtracker, Inc.; eMars, Inc., B-410752.3 et al., Sept. 3, 2015, 2015 CPD ¶ 279 at 7 (denying protest of the issuance of a COC where the procuring agency provided SBA with virtually all potentially relevant information in its possession).  (MPC Containment Systems, LLC B-416188.2: Jul 23, 2018)

Sea Box primarily argues that Sea Box’s alleged failure to submit documentation indicating that its product had previously been certified or accredited to operate at a minimum security level of secret relates to Sea Box’s responsibility. Sea Box further contends that such concerns relating to its responsibility should have been referred to the SBA. The agency, however, argues 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. AR at 2. We agree with the agency.

As an initial matter, we note that the record provides no basis for us to question the agency’s finding that Sea Box failed to provide the required certification/accreditation. While Sea Box provides a number of explanations for the failure to include the required documentation, it does not assert that it provided the documentation. For example, Sea Box argues that such a certification/accreditation could only be obtained after the final installation of the RSS. Comments at 8. Sea Box also argues that stipulations in the proposal asserting that its product would meet the salient characteristics established in the RFP should have been sufficient to satisfy the agency’s requirements. Comments at 5-7. Both of these arguments amount to untimely challenges to the terms of the solicitation, and provide no basis to question the agency’s determination that Sea Box failed to provide the required certification/accreditation in its proposal.

As for the protester’s contention that the agency was required to refer Sea Box’s unacceptable proposal to the SBA, we disagree. Where an agency finds the proposal of a small business to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of nonresponsibility, meaning that referral to the SBA, which has the ultimate authority to determine the responsibility of small business concerns, is required. Tyonek Worldwide Servs., Inc.; DigiFlight, Inc., B-409326 et al., Mar. 11, 2014, 2014 CPD ¶ 97 at 12. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility, however, referral to the SBA is not required. Id. Likewise, where an agency rejects a proposal as technically unacceptable on the basis of a factor that is arguably responsibility related, but the finding of unacceptability is based on the offeror’s failure to submit specific documentation required by the solicitation, referral to the SBA is not required. AttainX, Inc.; FreeAlliance.com, LLC., B‑413104.5, B-413104.6, Nov. 10, 2016, 2016 CPD ¶ 330 at 5.

Here, we are not persuaded that a requirement for documentation that an offeror’s product has previously received a particular security accreditation is responsibility related, since the requirement does not pertain to the offeror’s ability to perform. Moreover, the facts here show that the protester’s proposal was rejected as technically unacceptable because the protester failed to provide required documentation, meaning that referral to the SBA was not required.

The protester also argues that the agency should have provided Sea Box with notice when its proposal was removed from further consideration, as required by Federal Acquisition Regulation (FAR) §15.503(a)(1). Instead, the protester was notified that its proposal had been found unacceptable after award. According to the protester, such notice would have permitted it to file its protest with our Office earlier. Comments at 14. This protest ground does not provide a basis to sustain the protest because the protester has not demonstrated prejudice.

Prejudice is an essential element of every viable protest, and we will not sustain a protest where it is clear from the record that a protester suffered no prejudice as a result of an agency evaluation error. Investment Mgmt. Enter., B-410762, B‑410762.2, Feb. 9, 2015, 2015 CPD ¶ 77 at 4. Where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice. Id. Here, whether Sea Box challenged the agency’s finding that its proposal was unacceptable while evaluations were ongoing or after award, the fact remains that the agency reasonably found Sea Box’s proposal to be unacceptable and thus ineligible for award. Accordingly, Sea Box was not prejudiced by the delay.

Additionally, the protester complains that the agency failed to provide pre-award notice of the award to Tribalco under FAR §15.503(a)(2)(i), which prevented Sea Box from challenging Tribalco’s small business status prior to award. Comments at 13. Because Sea Box had been properly eliminated from the competition, however, Sea Box would not have been an interested party to challenge Tribalco’s status even if it had been provided with a pre-award notice. See 13 C.F.R. §121.1001.

The protest is denied.  (Sea Box, Inc. B-414742: Sep 6, 2017)

CRS contends that the agency’s exclusion of its proposal based on its failure to have sufficient capabilities in health-related missions amounted to a nonresponsibility determination that should have been referred to the SBA under SBA’s COC procedures. See Protest at 7.

In response, the agency explains that the agency reasonably found CRS’s proposal unacceptable under the management approach, domain-specific capability in a health-related mission subfactor. See AR, MOL at 7; see also AR, Supplemental (Supp.) MOL at 1-2. The agency further argues that this assessment was not a determination that CRS lacked the requisite capabilities to perform health-related missions, and therefore was not a responsibility determination. See AR, MOL at 8-9. In this regard, the agency contends offerors eliminated under the management approach, domain-specific capability in a health-related mission subfactor were eliminated because their proposals were not responsive to the solicitation as reflected in the agency’s evaluation. Id.

The Small Business Act provides that it is the SBA’s duty to certify to government procurement officers with respect to all the elements of contractor responsibility (including capability, competency, capacity, credit, integrity, perseverance, and tenacity) of any one or group of small business concerns to receive and perform a specific government contract. 15 U.S.C. § 637(b)(7)(A). SBA’s implementing regulations specifically require a contracting officer to refer a small business concern to SBA for consideration for a COC when the contracting officer “[r]efuses to consider a small business concern for award of a contract or order after evaluating the concern’s offer on a non-comparative basis (e.g., a pass/fail, go/no-go, or acceptable/unacceptable) under one or more responsibility type evaluation factors (such as experience of the company or key personnel or past performance).” 13 C.F.R. § 125.5(a)(2)(ii).

Here, the solicitation provided that in phase 1 of the evaluation, proposals were to be evaluated on a go/no-go basis, i.e., non-comparative basis. See RFP at M-3, M-4. The solicitation further provided that if rated unacceptable under any factor in phase 1, the entire proposal would be rendered unacceptable and ineligible for award. See id. at M-4. Further, the record provides no support for the agency’s argument that CRS’s proposal was eliminated because it was not responsive to the solicitation. Contrary to the agency’s arguments, the record shows that the agency found that the examples provided by CRS in its proposal were “not sufficient to demonstrate inherent capabilities in health-related missions” and that CRS’s proposal did not demonstrate that it possessed the requisite capability through “internal resources with substantial relevant experience.” See AR, Tab 7, Go/No-Go Assessment at 10. On this record, we find that the agency’s conclusion relates to CRS’s capability to perform the contract, not simply the adequacy or completeness of its proposal submission. See 22nd Century Team, LLC--Costs, B-412742.4, Dec. 15, 2016, 2016 CPD ¶ 369 at 6. Accordingly, the Small Business Act requires that the agency should have referred CRS to the SBA for a COC review in accordance with 13 C.F.R. § 125.5(a)(2)(ii). Cascadian Am. Enters., B-412208.3, B-412208.4, Feb. 5, 2016, 2016 CPD ¶ 29 at 7-8.

In sum, the agency evaluated the small business offerors on an acceptable/unacceptable basis, as opposed to a comparative basis, with respect to relevant experience, a responsibility-type evaluation factor, and found CRS’s proposal unacceptable under that factor. See 13 C.F.R. § 125.5(a)(2)(ii). As such, rejection of CRS’s proposal based on its rating of unacceptable under the management approach, domain-specific capability in a health-related mission subfactor, without first referring the matter to the SBA for a COC determination, was improper. Accordingly, we sustain the protest.  (Competitive Range Solutions, LLC B-413104.10: Apr 18, 2017)

Both protesters essentially argue that the agency’s exclusion of their proposals based on their failure to submit documentation verifying an adequate cost accounting system for all CTA members amounted to a non-responsibility determination that should have been referred to the SBA for a COC. We disagree.

We have long held that the evaluation of proposals is a matter within the discretion of the procuring agency; we will question the agency’s evaluation only where the record shows that the evaluation does not have a reasonable basis or is inconsistent with the RFP. Hardiman Remediation Servs., Inc., B-402838, Aug. 16, 2010, 2010 CPD ¶ 195 at 3.

Under the SBA’s COC program, agencies must refer to SBA a determination that a small business is not responsible if that determination would preclude the small business from receiving an award. 15 U.S.C. § 637(b)(7); 13 C.F.R. § 125.5; FAR subpart 19.6. SBA’s regulations specifically require a contracting officer (CO) to refer a small business concern to SBA for a COC determination when the CO has refused to consider a small business concern for award of a contract or order “after evaluating the concern’s offer on a non-comparative basis (e.g., pass/fail, go/no go, or acceptable/unacceptable) under one or more responsibility-type evaluation factors (such as experience of the company or key personnel or past performance).” 13 C.F.R. § 125.5(a)(2)(ii).

On this record, we do not agree that the agency’s evaluation involved a nonresponsibility determination requiring referral to SBA. While the protesters argue that our Office has found that an agency’s rejection of a proposal due to evaluated problems in the offeror’s accounting system is a matter of responsibility, not technical acceptability, see PMO Partnership Joint Venture, B-401973.3, B-401973.5, Jan. 14, 2010, 2010 CPD ¶ 29 at 5, we find this argument inapposite here. In this instance, the agency’s elimination of these two proposals from further consideration was not based on any evaluated problems with the accounting systems of the respective CTA members. See AttainX Protest at 10; AttainX Comments at 5; FreeAlliance.com Protest at 8, FreeAlliance.com Comments at 2. Rather, the record shows that NIH rated the proposals unacceptable based on the fact that both protesters failed to submit the specific documentation required by the solicitation, given their reliance on a third-party CPA firm to verify their adequacy of accounting systems. In other words, both protesters’ proposals were found unacceptable because they did not include the expressly required verification “on the [letterhead] of the third-party CPA firm” attesting to the fact that the CTA members’ accounting systems had been “audited and determined adequate for determining costs applicable to [the] contract in accordance with FAR § 16.301-3(a)(1).” See RFP at L-17. Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD ¶ 51 at 5; National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD ¶ 140 at 4-5.

It is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. See, e.g., International Med. Corps, B-403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 7. An offeror runs the risk that a procuring agency will evaluate its proposal unfavorably where it fails to do so. Recon Optical, Inc., B-310436, B-310436.2, Dec. 27, 2007, 2008 CPD ¶ 10 at 6. Accordingly, we find no merit to the protesters’ arguments.  (AttainX, Inc.; FreeAlliance.com, LLC B-413104.5, B-413104.6: Nov 10, 2016)

Certificate of Competency Requirement

Finally, DA Defense argues that, even assuming the confidence assessment assigned to its past performance was reasonable, under the solicitation’s modified best value evaluation scheme, which required a substantial confidence rating to be eligible for award, the satisfactory confidence assessment was tantamount to a nonresponsibility determination. The protester contends that because the Army made a de facto nonresponsibility determination and the protester is a small business, the agency was required to refer the matter to the SBA for review under the SBA’s certificate of competency program pursuant to 13 C.F.R. § 125.5 and FAR subpart 19.6. See Protest (Sept. 8, 2015) at 8-10. The Army and Marton respond that no referral to the SBA was necessary because the agency did not make a responsibility determination with respect to the protester, and the protester was not otherwise the apparent successful offeror. See AR at 9 (citing Rice Servs., Inc., B-411540, B‑411540.2, Aug. 20, 2015, 2015 CPD ¶ 260 at 4 n.2); Intervenor’s Comments (Oct. 19, 2015) at 1-2.

We find no merit to DA Defense’s argument that the Army was required, based on the protester’s satisfactory confidence past performance assessment, to refer the matter to the SBA for a certificate of competency review. An agency may use traditional responsibility factors, such as past performance, as technical evaluation factors where, as here, a comparative evaluation of those areas is to be performed. Source Diversified, Inc., B-403437.2, Dec. 16, 2010, 2010 CPD ¶ 297 at 8 n.11; Zolon Tech, Inc., B‑299904.2, Sept. 18, 2007, 2007 CPD ¶ 183 at 8; T. Head & Co., Inc., B‑275783, Mar. 27, 1997, 97-1 CPD ¶ 169 at 3-4. No SBA referral is required where a small business offeror’s technically-acceptable proposal is not selected for award because another offeror’s proposal is evaluated as superior under a comparative analysis or because of a cost/technical tradeoff analysis. Zolon Tech, Inc., supra; CMC & Maint., Inc., B-292081, May 19, 2003, 2003 CPD ¶ 107 at 4.

There was no pass/fail evaluation of past performance here. The record shows that, consistent with the RFP’s anticipated qualitative assessment of past performance, DA Defense’s past performance was evaluated as satisfactory as part of a comparative, best-value evaluation, not a responsibility determination. AR, Tab 14A, SSEB Report (Aug. 17, 2015), at 21-25; Tab 14B, Source Selection Decision (Aug. 19, 2015), at 4-5. Moreover, the RFP did not preclude award to an offeror with a satisfactory confidence rating. Instead, as discussed above, the solicitation provided for award to the offeror that submitted the lowest-priced proposal that was technically acceptable, and had a substantial confidence rating for past performance; in the event no offeror had a substantial confidence rating, offerors who had satisfactory confidence ratings would be considered. On this record, we agree with the Army that it had no obligation to refer its qualitative assessment of DA Defense’s satisfactory past performance to the SBA for a certificate of competency.  (DA Defense Logistics HQ B-411153.3: Dec 2, 2015)  (pdf)

[N3 Government Solutions, LLC] N3GS does not dispute that, as stated in its proposal, it possessed an interim top secret security clearance, rather than a final one, and that this remained the case through at least June 12. Nevertheless, the protester argues that [Defense Threat Reduction Agency] DTRA failed to fulfill the corrective action announced in response to N3GS’s earlier protest because the contracting officer lacked a valid basis to deny the SBA additional time to consider issuing a COC. Protest at 6-7.

DTRA argues that the unacceptability of a small business offeror’s facility security clearance should not be a matter for which referral to the SBA is required. Agency Report at 5. Even if referral is required, DTRA argues that the contracting officer had broad discretion whether to allow additional time for the SBA to consider N3GS’s COC, and properly declined the extension request here. Id. at 6.

Our Office invited the SBA to provide its views on the protest issues. The SBA argues that questions over whether a small business has met a pass/fail requirement for a facility security clearance, as here, are properly matters of responsibility that must be referred to the SBA for consideration of a COC, as DTRA did when it took corrective action in response to N3GS’s first protest. SBA Brief at 4‑5. On the other hand, the SBA argues that the contracting officer’s decision not to grant an extension to the SBA to further consider the COC referral was a matter within the contracting officer’s discretion, and that N3GS could not have received a COC in any event because the firm did not have the required final facility security clearance. Id. at 6-7.

Under SBA regulations, when an agency refers a question over the responsibility of a small business to the SBA to consider issuing a COC, the contracting officer must withhold the contract award “for a period of 15 working days (or longer if agreed to by SBA and the contracting officer).” 13 C.F.R. § 125.5(c)(2) (2014); see also Federal Acquisition Regulation (FAR) § 19.602-2 (“15 business days,” or longer by agreement). If no COC is issued in the 15-day period (or longer period agreed between SBA and the contracting officer), the contracting officer is directed to make award to the next firm in line. FAR § 19.602-4(c).

Although the SBA asked the contracting officer to agree to more time to consider issuing a COC, there was no agreement by the contracting officer to do so. Our Office has held that “the granting of such extensions is entirely discretionary with [the contracting agency].” Eagle Sec., Inc., B-242397, Apr. 29, 1991, 91‑1 CPD ¶ 415 at 4. We will not review the contracting officer’s discretion in denying an extension absent a showing that the decision to deny the request may have been influenced by fraud or bad faith. Worthy Indus. Corp., B-240489, Nov. 27, 1990, 90‑2 CPD ¶ 428 at 3. Here, N3GS has not shown, or even alleged, that the failure of the SBA to complete the COC process within 15 days, or the contracting officer’s decision not to extend that time, was caused by fraud or bad faith. To the contrary, N3GS describes the delay as being caused by “an admitted clerical or process error and through no fault of the Agency and no fault of [N3GS].” Protester’s Opposition to Dismissal, at 2.

In short, the record here shows that DTRA referred the question of N3GS’s responsibility to the SBA for consideration under its COC process, as DTRA agreed to do as corrective action in response to N3GS’s earlier protest. The SBA sought, but was denied, an extension of the 15-day period to consider the COC, as to which there is no allegation that fraud or bad faith played any role. As a result, we have no basis to question the contracting officer’s decision to proceed with the contract award to VSI, as provided in FAR § 19.602-4.  (N3 Government Solutions, LLC B-411303.2: Sep 9, 2015)  (pdf)
 

JS&A contends that GSA had determined that JS&A was in line to receive one of the awards, as evidenced by its referral of the firm’s responsibility to the SBA for a COC review. JS&A argues therefore that because the SBA subsequently issued a COC to the protester, GSA “had an obligation” to make the award to the protester. Protester’s Comments (April 8, 2015), Attach. A, at 14. For the reasons discussed below, we find no merit to this argument. (sentence deleted).

A contracting officer may not make an award to an offeror unless it is found to be responsible. FAR § 9.103(a). In making a responsibility determination, the contracting office must determine, among other things, that the contractor has “adequate financial resources to perform the contract, or the ability to obtain them.” FAR § 9.104-1(a). Where a small business concern’s offer would otherwise be accepted for award, but the firm is found by the contracting officer to be nonresponsible, the contracting officer must refer the matter to the SBA for consideration of a COC. FAR §§ 9.104-3(d); 19.601(c). Where the SBA issues a COC, agencies are required to make award to the concern, without requiring it to meet any other responsibility or eligibility requirement. 15 U.S.C. § 637(b)(7)(C); FAR § 19.602-4.

Our Office has held, however, that while the SBA’s COC provisions and the FAR preclude an agency from denying award to an offeror that has received a COC based on responsibility matters, an agency is not required to make award to that offeror if there are other reasons for denying the award that are not related to its responsibility. See Tenderfoot Sock Co., Inc., B-293088.2, July 30, 2004, 2004 CPD ¶ 147 at 3 (although protester was issued a COC, the agency reasonably awarded a contract to a different offeror because the COC request was premature, as the agency had not yet determined whether the protester was in line for award); The Gerard Co., B-274051, Nov. 8, 1996, 96-2 CPD ¶ 177 at 3 (agency properly obtained best and final offers--due to issuance of amendment--after COC was issued to protester); Mechanical Equip. Co. Inc., B-239208, Apr. 25, 1990, 90-1 CPD ¶ 428 (in a solicitation restricted to qualified sources, the agency reasonably considered another offeror as a source of supply after the SBA had issued a COC for the protester).

Here, as stated above, the RFP provided for award of contracts on a best-value basis. Based on the issuance of a COC to the protester, GSA could not deny the protester the award based on matters relating to its responsibility. Consistent with our Office’s decisions, however, the agency could select offerors other than JS&A, provided the basis for doing so was unrelated to the protester’s responsibility. The record here shows that the agency conducted a best-value tradeoff between JS&A and the three offerors who proposed higher prices than the protester: Hill, Heery, and URS. AR, Tab 14, Source Selection Decision (Jan. 26, 2015), at 4, 7, 9; Tab 16, GSA Debriefing for JS&A (Feb. 20, 2015), at 2. In each instance, the agency concluded that the three awardee’s proposals provided strengths under the non-price factors which merited award despite JS&A’s lower price. Id. On this record, we conclude that the agency was not required to award the contract to JS&A based solely on the issuance of the COC.  (Jay Shapiro & Associates, Inc. B-411174: Jun 5, 2015)  (pdf)

Latvian Connection argues that its exclusion from the competition constituted a negative responsibility determination with respect to a small business, which therefore should have been referred to the SBA under its Certificate of Competency (COC) procedures. Protest at 14. The SBA, which submitted comments to our Office in response to the protest, likewise asserts that the actions of DOS and FedBid constituted a de facto nonresponsibility determination, which should have been referred to the SBA under its COC procedures. SBA Comments, Feb. 26, 2015, at 2-5. DOS, however, responds that there was no responsibility determination by the agency here since Latvian Connection never submitted a response to the solicitation and, in any case, FedBid acted to suspend Latvian Connection without direction or encouragement from DOS. AR at 9; Agency Response to SBA’s Comments at 2.

Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC procedures. 15 U.S.C. § 637(b)(7); FAR subpart 19.6; FitNet Purchasing Alliance, B‑410263, Nov. 26, 2014, 2014 CPD ¶ 344 at 6-7. In this regard, the Small Business Act provides that it is the SBA’s duty:

To certify to Government procurement officers . . . with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.

15 U.S.C. § 637(b)(7)(A) (emphasis added). Importantly, this section of the Act also provides that a “Government procurement officer . . . may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.” Id.

Here, Latvian Connection was suspended from use of FedBid. Under FedBid’s rules, therefore, Latvian Connection was ineligible to respond to DOS’s solicitation, and thereby precluded from competing or being awarded a contract. The basis of Latvian’s suspension was the firm’s lack of “System and Business Integrity.” FedBid Suspension E-mail, July 8, 2014, at 1. Although FedBid, a private company, was the entity that precluded Latvian’s ability to compete for the contract, we have previously held that when FedBid hosts a reverse auction on its website, it acts as an agent for the agency conducting the procurement. AeroSage LLC, B-409627, July 2, 2014, 2014 CPD ¶ 192 at 4. As a result, we conclude that the DOS, through its agent, FedBid, precluded Latvian Connection, a small business, from competing for, and potentially being awarded, a contract on the basis of the firm’s integrity, without referring the matter to the SBA. This amounted to a determination of nonresponsibility, which the agency should have referred to the SBA for a COC determination. Therefore, we sustain the protest on this basis.  (Latvian Connection, LLC B-410947: Mar 31, 2015)  (pdf)  Also see Latvian Connection, LLC B-410981: Apr 6, 2015)  (pdf)
 

Failure to Refer to SBA

MTA asserts that the requirement that intermittent interpreters possess TS/SCI clearances was a classic responsibility factor, and since it was evaluated on a “pass/fail” basis, the agency was required to refer the rejection of its proposal for failure to meet that requirement to the SBA under its Certificate of Competency (COC) procedures.

Our Office has held that the ability to obtain a security clearance is generally a matter of responsibility, absent an express requirement in the solicitation to demonstrate the clearance prior to award, which would indicate that the requirement was a definitive responsibility criterion. See TMG Constr. Corp., B-407190, Nov. 19, 2012, 2012 CPD ¶ 343 at 5; Rohmann Servs., Inc., B-405171, B-405171.2, Sept. 8, 2011, 2011 CPD ¶ 177 at 8; Waterfront Techs., Inc.--Protest and Costs, B-401948.16, B-401948.18, June 24, 2011, 2011 CPD ¶ 123 at 6. Under the Small Business Act, 15 U.S.C. § 637(b)(7) (2006), the SBA has conclusive authority to determine the responsibility of small business concerns. Thus, when a procuring agency finds that a small business is not eligible for award based on a nonresponsibility determination or a failure to satisfy definitive responsibility criteria, the agency is required to refer the matter to the SBA for a final determination under its COC procedures. TMG Constr. Corp., supra, at 5 n.4; Waterfront Techs., Inc.--Protest and Costs, supra.

Here, we find that the agency was not required to refer the matter to the SBA for COC consideration. Where a proposal, on its face, should lead an agency to the conclusion that an offeror has not agreed to comply with a material term or condition of the solicitation, the matter is one of the proposal’s acceptability, and not a matter of the offeror’s responsibility. TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD ¶ 51 at 6 (proposal that on its face does not satisfy a solicitation's limitation on subcontracting clause concerns the acceptability of the proposal, and not the offeror's responsibility). Further, a proposal that fails to conform to a material term or condition of the solicitation is unacceptable and may not form the basis for an award. Id. In this regard, MTA’s final proposal, as timely revised prior to the final closing time, identified only four intermittent interpreters, none of whom had an TS/SCI clearance as required by the solicitation. In these circumstances, the agency could reasonably conclude that, notwithstanding MTA’s assurances that it was working on obtaining certain unidentified intermittent interpreters with the requisite clearance, the fact that its timely submitted proposal identified interpreters without the requisite clearance called into question MTA’s commitment to comply with this requirement, thus furnishing a basis for rejecting the proposal as unacceptable.  (MT & Associates, LLC, B-410066: Oct 17, 2014)  (pdf)
 

Construct has alleged that the SBA's initial decision denying the firm's [certificate of competency] COC request was improper. In this regard, the protester argues that the denial stemmed from SBA's application of an incorrect limitation on subcontracting standard. Although SBA subsequently reversed the initial decision, and granted Construct a COC for this procurement, Construct has not received the award due to the initial COC denial. Because we conclude that the initial COC denial stemmed from SBA's misapplication of its regulations, we sustain Construct's protest on that basis.

Under the Small Business Act, 15 U.S.C. sect. 637(b)(7), agencies may not find a small business non-responsible without referring the matter to the SBA, which has final authority to determine the responsibility of small business concerns. Joanell Labs., Inc.; Nu-Way Mfg. Co., Inc., B-242415.8, et al., Apr. 15, 1922, 92-1 CPD para. 369. With regard to consideration of SBA COC determinations, the Small Business Act gives the SBA the conclusive authority to review a contracting officer's determination that a small business is not responsible. 15 U.S.C. sect. 637(b)(7). Therefore, our Office does not review challenges to the SBA's decision not to issue a COC unless there is a showing that the COC denial resulted from possible bad faith, or the SBA's failure to follow its own regulations or to consider vital information because of how information was presented to, or withheld from, the SBA by the procuring agency. Bid Protest Regulations, 4 C.F.R. sect. 21.5(b)(2). In this context, the subject for our review is limited to examining whether SBA applied the correct regulations when it denied Construct a COC. See McNeil Technologies, Inc., B-254909, Jan. 25, 1994, 94-1 CPD para. 40.

In order for SBA to issue a COC, a referred company must, preliminarily, demonstrate that it is eligible to apply for a COC. See SBA letter, June 22, at 1. In this case, the SBA concluded that Construct was not eligible. Specifically, the SBA stated that:

SBA regulations require that for any procurement that is set aside for small business, the small business must perform minimum percentage of work with its own employees. This provision, which is included in both SBA's regulations and in the Federal Acquisition Regulation, is known as the "limitations on subcontracting clause." 13 C.F.R sect. 125.6; FAR sect. 19.508(e) and FAR sect. 52.219-14. The clause requires that you perform a minimum of 15% of the cost of the contract with your own employees, not including the cost of materials. Based on the figures provided by Construct Solutions, it proposed to perform about half that, or less than 8%. For that reasons [sic], SBA cannot issue a Certificate of Competency.

Id. (Emphasis added).

The SBA regulation cited in the SBA's June 22 letter, 13 C.F.R sect. 125.6, consists of several distinct provisions. As relevant, 13 C.F.R. sect. 125.6(a), applies to small businesses and requires in part that, "[i]n the case of a contract for general construction, the concern will perform at least 15 percent of the cost of the contract with its own employees (not including the costs of materials)." Id. at sect. 125.6(a)(3) (emphasis added). This provision, the requirements of which were cited in SBA's refusal to issue the COC, does not, however, apply to SDVOSBs. Rather, the subcontracting limitations forth in 13 C.F.R. sect. 125.6(b) apply to SDVOSBs and establish a less stringent subcontracting threshold. Specifically, the regulation states that an SDVOSB prime contractor can subcontract a portion of the work, provided that "[i]n the case of a contract for general construction, the [SDVOSB] spends at least 15% of the cost of contract performance incurred for personnel on the concern's employees or the employees of other [SDVOSBs]." Id. at sect. 125.6(b)(2) (emphasis added). Construct asserts that when analyzed under the appropriate standard, its COC application demonstrates that 26.21 percent of the work will be performed by its employees or the employees of another SDVOSBC.

In sum, the record reflects that SBA incorrectly applied the limitation on subcontracting found at 13 C.F.R. sect. 125.6(a), to Construct, a SDVOSB subject to the limitation on subcontracting at 13 C.F.R. sect. 125.6(b). We therefore sustain the protest where SBA refused to issue a COC to Construct due to failure to properly follow its own regulations.

RECOMMENDATION

Where our Office has sustained a protest of the SBA's refusal to issue a COC, we have recommended that the procuring agency resubmit the matter of the small business firm's responsibility to SBA for further consideration. See COSTAR, B‑240980, Dec. 20, 1990, 90-2 CPD para. 509. In that context, we have also further recommended that, if the SBA should issue a COC on behalf of the firm, that the agency should then take corrective action up to and including changing the award decision. For example, in COSTAR, supra, our Office recommended that, if the SBA issued a COC to the protester, the agency should terminate a previously awarded contract under the solicitation for convenience of the government and make a new award to the protester.

In the current protest, as noted above, the SBA has acknowledged that its initial refusal to issue a COC to the protester was in error, and has issued Construct a COC related to this procurement. SBA Letter, July 25, at 1. Therefore, we conclude that the appropriate remedy in this protest, as in COSTAR, is to recommend that the agency terminate the award to Ironclad and make a new award to Construct. We also find that Construct is entitled to recover its costs of filing and pursuing the protest, including reasonable attorney's fees. 4 C.F.R. sect. 21.8(d)(1). Construct should submit its claim for such costs directly to the VA within 60 days.  (Construct Solutions, Inc.--Protest and Reconsideration, B-405288; B-405288.2, October 11, 2011)  (pdf)

Zolon asserts that the agency’s determination that its revised price was unrealistic and risky constituted a finding that the firm was not responsible. In this regard, Zolon notes that, in making the best value determination, the agency found that the firm’s pricing structure would make it very difficult or impossible to transition a large percentage of the incumbent personnel to a new contract, and was highly unlikely to allow the firm to meet the government’s performance standards. Zolon also notes that the agency considered its past performance and experience to be deficiencies that it could not overcome. Zolon concludes that since it is a small business, the agency was required to refer the matter of its responsibility to the Small Business Administration (SBA) for review under its certificate of competency procedures. See Federal Acquisition Regulation sect. 19.602-1(a). Zolon’s assertions are without merit. An agency may use traditional responsibility factors, such as personnel competencies and capabilities, as technical evaluation factors where, as here, a comparative evaluation of those areas is to be performed. Advanced Resources Int’l, Inc.-Recon., B-249679.2, Apr. 29, 1993, 93-1 CPD para. 348 at 2. A comparative evaluation means that competing proposals will be rated on a scale relative to each other rather than on a pass/fail basis. Dynamic Aviation Helicopters, B-274122, Nov. 1, 1996, 96-2 CPD para. 166 at 3. No SBA referral is required where a small business offeror’s proposal, while evaluated as acceptable, is not selected for award because another offeror’s proposal is evaluated as superior under a comparative analysis or because of a cost/technical tradeoff analysis. Capitol CREAG LLC, B-294958.4, Jan. 31, 2005, 2005 CPD para. 31 at 6-8. There was no pass/fail evaluation here; the record shows that evaluation of Zolon’s past performance and experience, as well as the price realism and risk assessment based on the firm’s low proposed labor rates, were all part of a comparative, best value evaluation, not a responsibility determination. Best Value Determination at 00385, 00389-390. (Zolon Tech, Inc., B-299904.2, September 18, 2007) (pdf)

As indicated, JAF’s proposal was not considered for award because its proposed price was considered unreasonably low. However, there was no technical or price evaluation factor under the RFP providing for the evaluation of price realism or the offerors’ understanding of the requirements. The price evaluation provided only for the evaluation of the “reasonableness” of the proposed price, that is, whether the price was unreasonably high. Thus, the agency’s concern that JAF’s price was too low was a matter of the firm’s responsibility. Since JAF is a small business, if the Air Force believed that JAF could not satisfactorily perform the contract at its proposed price, it was required to refer this finding of nonresponsibility to the SBA for that agency’s review under its certificate of competency procedures. Accordingly, we sustain JAF’s protest on this basis. (J.A. Farrington Janitorial Services, B-296875, October 18, 2005) (pdf)

As set forth in the regulations and explained by SBA, until 1998, SBA's regulations specifically provided that the COC procedures did not apply to contracts awarded under SBA's section 8(a) program. 13 C.F.R. 124.313 (1998). SBA's regulations were amended on June 30, 1998, to provide (as they do now) that if, in the conduct of "competitive 8(a) procurements," the "procuring activity contracting officer believes that the apparent successful offeror is not responsible to perform the contract, he or she must refer the concern to the SBA for a possible Certificate of Competency." 63Fed. Reg. 35726, 35758 (1998); 13C.F.R. 124.507(b)(5) (2004). In making this regulatory change, SBA explained that it wanted "to make competitive 8(a)procurements as similar as possible to non8(a) Government contracting procedures." 62 Fed. Reg. 43583, 43592 (1997); SBA Supplemental Report at 1. SBA emphasizes, however, that as provided in the regulatory history of 13 C.F.R. 124.507(b)(5), and as indicated by SBA's current regulations, the availability of the COC process to an 8(a) participant is limited to nonresponsibility determinations made during competitive 8(a) acquisitions. With regard to noncompetitive acquisitions, such as the one here, SBA, in amending its regulations to provide for the applicability of the COC process to nonresponsibility determinations made in the context of competitive 8(a) acquisitions, stated as follows:

COC procedures would not, however, be available for sole source 8(a) procurements. In most cases, the procuring agency would have selected the Participant for the sole source contract by assessing the firm's capabilities prior to offering the procurement to SBA. It is unlikely that the procuring agency would select a Participant, go through negotiations with the firm, and then find the firm not to be responsible. If that does happen, or if the procuring agency determines that a firm nominated by SBA for an open requirement cannot perform the contract, SBA would review the situation to determine whether it agrees with the procuring agency. If SBA agrees, it can nominate another Participant to perform the contract, if one exists that is found to be eligible and responsible for the requirement, or it can permit the agency to withdraw the requirement from the 8(a) program if an eligible and responsible Participant is not found. If SBA does not agree, it can appeal the procuring agency's decision to the head of the procuring agency pursuant to 124.505. 62 Fed. Reg. 43583, 43592 (1997).

The procedures referenced above are implemented through 13 C.F.R. 124.505(a)(2), which provides that the "Administrator of SBA may appeal . . . to the head of the procuring agency" the procuring agency's "decision to reject a specific [8(a)] Participant for award of an 8(a) contract." As such, here, once CNCS determined that UEA was nonresponsible, and informed SBA of that determination, SBA, if it agreed with CNCS, should have allowed for the replacement of UEA with another 8(a) vendor, such as the vendor identified by CNCS, or should have permitted CNCS to withdraw the requirement from the 8(a) program if no qualified 8(a) vendor was available. See DLS Servs., Inc. , supra , at 3. If SBA disagreed with CNCS regarding its determination that UEA was nonresponsible, the Administrator of SBA could have appealed the CNCS contracting officer's responsibility determination to the head of the procuring agency. 13 C.F.R. 124.505(a)(2). In short, we agree with SBA that it erred in considering UEA for a COC because the COC process is not applicable to noncompetitive 8(a) acquisitions. SBA Report at 2; SBA Supplemental Report at 1-2. (United Enterprise & Associates, B-295742, April 4, 2005)  (pdf)

GSA and Pepco assert that Liberty's proposal evidenced a defective commitment to complying with the subcontracting limitation, and that this therefore was a matter of acceptability, and not responsibility. See Ecompex, Inc. , B-292865.4 et al., June 18, 2004, 2004 CPD 149 at 5; Mechanical Equip. Co., Inc.; Highland Eng., Inc.; Etnyre Int'l, Ltd.; Kara Aerospace, Inc. , supra ; KIRA Inc. , B287573.4, B-287573.5, Aug.29, 2001, 2001 CPD 153 at 3. We disagree. As an initial matter, the contracting officer in fact determined that Liberty's proposal was acceptable; the only question was whether Liberty was entitled to the SDB preference. Further, while GSA asserts that the generating asset in [DELETED] for which Liberty submitted an expired letter of intent could not generate sufficient power to meet the 50percent rule, the agency fails to take into account the fact that Liberty stated that it had "been in negotiations with several plant owners in the PJM territory to acquire the necessary manufacturing capability," Letter from Liberty to GSA, Nov.16, 2004, and not merely with the owner of the generating asset in [DELETED]. Consequently, this is not an instance where the offeror's proposal, on its face, reasonably indicated that the offeror would not comply with a subcontracting limitation, see , e.g. , Orincon Corp. , B276704, July 18, 1997, 97-2 CPD 26 at 4; rather, it involves a question of the offeror's capability to comply with a subcontracting limitation and, thus, its responsibility. As such, this was a matter for the SBA. GSA now asserts that Liberty also failed to meet the requirement set forth in FAR 52.21923(d)(2) that states: "A small disadvantaged business concern submitting an offer in its own name shall furnish in performing this contract only end items manufactured or produced by small disadvantaged business concerns in the United States or its outlying areas." The agency notes in this regard that in its November 11 response to the agency's inquiries, Liberty stated that it would obtain supplemental electricity from one or more firms on a list of its existing suppliers, which includes large businesses. However, as noted by the SBA in its comments on this matter, SBA Comments, Feb. 2, 2005, at 3, while the provisions of FAR 52.21923(d)(1) apply to manufacturers, those of FAR 52.21923(d)(2) clearly apply to SDBs that are nonmanufacturers, that is, SDBs that intend to furnish the products of other SDB concerns. See distinction between manufacturer and nonmanufacturer in 15 U.S.C. 637(a)(17)(A); 13 C.F.R. 121.406; FAR 19.001, 19.102(f), 19.601(d). Here, Liberty essentially claimed that it would qualify as a manufacturer under FAR 52.21923(d)(1); thus, FAR 52.21923(d)(2) was irrelevant to determining Liberty's SDB status and entitlement to the preference, and the final determination as to whether that in fact is the case is for the SBA, as discussed above. Accordingly, we sustain the protest. (Liberty Power Corporation, B-295502, March 14, 2005) (pdf)

It is true that the reasons for GSA's concern about CREAG arose in connection with the evaluation under the solicitation (not post-evaluation, when a responsibility review is normally conducted). This, however, is not determinative. We have long recognized that agencies may use responsibility-type factors as evaluation criteria. See , e.g. , Nomura Enters., Inc. , B-277768, Nov. 19, 1997, 97-2 CPD 148 at 3. Here, the evaluation criteria related to management and staffing are at issue, and both can be viewed as "traditional" responsibility factors. See Clegg Indus., Inc. , B242204.3, Aug. 14, 1991, 91-2 CPD 145 at 2. Where a solicitation uses traditional responsibility factors as technical evaluation criteria and where the proposal of a small business concern which otherwise would be in line for award is found ineligible for award based on an agency's evaluation under those criteria, the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements. In those circumstances, because of the offeror's small business size status, the agency must refer the matter of the firm's responsibility to the SBA for the possible issuance of a COC. Here, however, we conclude that the basis for GSA's ultimate decision not to make award to CREAG was not a responsibility determination. As noted above, management and staffing are sometimes responsibility criteria. In this procurement, though, GSA's concern was not that CREAG lacked adequate management and staffing (which might well have been a responsibility concern), but rather that CREAG's proposed management and staffing plan--CREAG's approach to performing the contract work--created a high risk of unacceptable performance. This was not due to doubt about CREAG's ability or capability to perform (again, potentially a responsibility concern), but rather to the decentralized approach that CREAG proposed to use to perform GSA's requirements. As the SSEB wrote, "The offeror did not present an adequate resolution to adequately managing the scope of the contract." Final SSEB Report to the SSA at 59. Because GSA's negative assessment was based on the way that CREAG proposed to perform, rather than on CREAG's capabilities, we conclude that what occurred was not tantamount to a nonresponsibility determination, and we therefore find that no referral to the SBA was required. (Capitol CREAG LLC, B-294958.4, January 31, 2005) (pdf)

The award to Southern was unobjectionable. The FAR requirement that agencies make award to a concern where SBA issues a COC presumes that the COC referral will occur after the concern has been determined to be otherwise in line for the award. FAR 9.104-3(d). The record in this case shows that, at the time of the referral, the contracting specialist had not yet determined that Tenderfoot was in line for the award; she had determined only that Tenderfoot was one of several firms that could receive the award. Contracting Officers Statement at1. Nevertheless, apparently not fully understanding the COC process, and having questions about Tenderfoots financial capability, the contracting specialist (prematurely) submitted the matter to SBA for a COC review. AR at 3. Although SBA acted on the referral and issued a COC to Tenderfoot, VA was not required to make award to Tenderfoot at that juncture, since it had not yet determined that Tenderfoot was otherwise in line for the award. The agency could not deny Tenderfoot the award based on matters of responsibility, but nothing prohibited it from selecting another offeror for award based on a price/technical tradeoff in accordance with the RFPs evaluation scheme. See The Gerard Co. , B274051, Nov. 8, 1996, 962 CPD 177 at 3 (agency properly obtained best and final offers--due to issuance of amendment--after COC was issued to protester).  (Tenderfoot Sock Company, Inc., B-293088.2, July 30, 2004)

Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC procedures. 15 U.S.C. § 637(b)(7) (2000); FAR Subpart 19.6; Federal Support Corp., B-245573, Jan. 16, 1992, 92-1 CPD ¶ 81 at 4. Past performance traditionally is considered a responsibility factor, that is, a matter relating to the offeror's ability to perform the contract. See FAR § 9.104-1(c); Sanford and Sons Co., B-231607, Sept. 20, 1988, 88-2 CPD ¶ 266 at 2. Traditional responsibility factors may be used as technical evaluation factors in a negotiated procurement, but only when a comparative evaluation of those areas is to be made. See, e.g., Medical Info. Servs., B‑287824, July 10, 2002, 2001 CPD ¶ 122 at 5; Nomura Enter., Inc., B-277768, Nov. 19, 1997, 97‑2 CPD ¶ 148 at 3. Comparative evaluation in this context means that competing proposals will be rated on a scale, relative to each other, as opposed to a pass/fail basis. Ducosort, Inc., B‑254852, Jan. 25, 1994, 94-1 CPD ¶ 38 at 6. We have cautioned that an agency may not find a small business nonresponsible under the guise of a relative assessment of responsibility-based technical factors in an attempt to avoid referral to the SBA. Federal Support Corp., supra, at 4; Sanford and Sons Co., supra, at 3. That appears to be what occurred here.  Here, the agency did not, and could not, perform a “comparative evaluation.” The only technical evaluation factor, past performance, a traditional responsibility factor, was evaluated for the sole “purpose” of making an “assessment of the Offeror's ability to perform.”[8] RFP § 00120 ¶ 2.2.2.1.1. As essentially conceded by the agency, PHC's proposal was rejected because PHC allegedly failed to meet the RFP requirements that the offeror have past performance experience in medical construction on projects of 50 to 100 bed hospitals or large clinics valued at between $5 and $10 million. Because of this, past performance was clearly evaluated on a “pass/fail” basis. Under the circumstances, the agency's rejection of PHC's proposal amounted to a determination of nonresponsibility, which required referral to the SBA for a possible COC. See Federal Support Corp., supra, at 4 (protest sustained where “regardless of how the evaluation criteria was characterized in either the RFP or in the evaluation,” determination of technical unacceptability was nonresponsibility determination); Modern Sanitation Sys. Corp., B-245469, Jan. 2, 1992, 92-1 CPD ¶ 9 at 3 (technical unacceptability based on “go-no go” evaluation of responsibility criteria, without regard to how the rest of the proposal was judged, constitutes nonresponsibility determination that must be referred to the SBA); Clegg Indus., Inc., B‑242204.3, Aug. 14, 1991, 91-2 CPD ¶ 145 at 3 (same).  (Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003)  (txt version)

Global argues that, since it is a small business, the agency was required to refer the rejection of its proposal to the Small Business Administration (SBA) for Certificate of Competency (COC) review. Protester's Comments at 6. However, traditional responsibility factors, such as experience, may be used for the comparative evaluation of proposals in relevant areas; where a proposal is determined to be deficient pursuant to such an evaluation, the matter is one of relative technical merit, not responsibility, and does not require a referral to the SBA. See Advanced Resources Int'l, Inc.--Recon., B-249679.2, Apr. 29, 1993, 93-1 CPD ¶ 348 at 2. The agency here found that Global lacked adequate required expertise, and downgraded its proposal in the technical evaluation. Since this was not a nonresponsibility determination, no referral to SBA was required. See Micronesia Media Distributors, Inc., B-222443, July 16, 1986, 86-2 CPD ¶ 72 at 2.  (Global Business and Legal Services, B-290381.2, December 26, 2002)  (pdf)

Here, since the SBA has declined to issue a COC and since none of the limited exceptions exist for our Office to review the SBA's decision, the essential issue for our consideration raised by this protest is whether new information requiring reversal of the nonresponsibility determination was presented to the contracting officer after the denial of the COC. The information presented by the protester following the SBA's denial of a COC was not new information.  (Quality Trust, Inc., B-289445, February 14, 2002)

In considering the applicable standard here, we note first that despite DLC's status as a small business concern, this nonresponsibility determination was not required to be referred to the Small Business Administration (SBA) for review under that agency's certificate of competency procedures, as GPO is not subject to the referral requirements of the Small Business Act, 15 U.S.C. sect. 637(b)(7) (1994).  (Downtown Legal Copies, B-289432, January 7, 2002)

A proposal found deficient following a comparative evaluation of proposals (rather than on a pass/fail basis) under traditional responsibility factors such as experience, past performance, and personnel qualifications is not a matter of responsibility subject to the Small Business Administration's certificate of competency procedures.  (Medical Information Services, B-287824, July 10, 2001)

Our Office will review the SBA's determinations regarding the issuance of, or failure to issue, a COC, only where there is a showing of possible bad faith on the part of government officials or a failure to consider vital information bearing on the firm's responsibility. 4 C.F.R. sect. 21.5(b)(2). Where, as here, one offeror protests the issuance of a COC to a competitor on the ground that the SBA failed to consider "vital information," we will consider the protest only where the solicitation contains definitive responsibility criteria and the issue raised concerns the competitor's compliance with those criteria. [3] Eastern Marine, Inc., B-212444.2, Aug. 28, 1984, 84-2 CPD para. 232 at 4; Surgical Instrument Co. of Am., B-212653, Nov. 30, 1983, 83-2 CPD para. 628 at 2; Uniflite, Inc., B-197365, Jan. 23, 1980, 80-1 CPD para. 67 at 2. Here, since neither bad faith nor a failure to comply with a definitive responsibility criterion has been alleged, we will not consider the matter.  (Integrity Management Services, Inc., B-283094.2, May 3, 2000)