As noted above, Bunzl argues that the CO unreasonably determined it to be nonresponsible. In making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Torres Int’l, LLC, B‑404940, May 31, 2011, 2011 CPD ¶ 114 at 4. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. Colonial Press Int’l, Inc., B-403632, Oct. 18, 2010, 2010 CPD ¶ 247 at 2. An offeror’s responsibility is to be evaluated based on any information received by the agency up to the time award is proposed to be made, Sygnetics, Inc., B-404535.5, Aug. 25, 2011, 2011 CPD ¶ 164 at 4, and our review is based on the information available to the contracting officer at the time the determination was made. Acquest Dev. LLC, B-287439, June 6, 2001, 2001 CPD ¶ 101 at 3.

Here, the CO concluded that, even if the April 11 email in question had been timely received, there were “still many significant issues that would preclude Bunzl from being considered.” SSDD at 5. The CO pointed out that letters of supply were not submitted for 25 items and letters of supply for 7 items did not state a country of origin. COS at 5. Because the protester “failed to demonstrate that it had or would have the ability to comply with TAA sourcing requirements” for 32 of the 316 items to be supplied under the contract, the CO determined that Bunzl was not a responsible offeror. MOL at 7. We find no reason to conclude that this determination was not factually supported and made in good faith.

Bunzl argues that DeCA could have engaged in clarifications to remedy the missing information. Protest at 8; see also Comments at 9. We find this argument unpersuasive. Even to the extent that the CO could have elected to seek further information from Bunzl to address responsibility concerns, she was not required to do so. In this regard, we have previously held that while the CO may elect to open a dialogue with an offeror to address responsibility concerns, such a dialogue is not required where an agency has an otherwise reasonable basis for assessing the firm’s responsibility. Rotech Healthcare, Inc., B-409020, B-409020.2, Jan. 10, 2014, 2014 CPD ¶ 28 at 6.  (Bunzl Distribution California, LLC B-412475.4: Oct 21, 2016)

Engility argues that the agency unreasonably found it nonresponsible. The protester maintains that it engaged in a merger transaction between Engility Corporation and TASC, Inc. The protester explains that in February 2015, Engility Corporation acquired TASC, Inc., and that, on January 1, 2016, Engility consolidated contracts from a number of legal entities to one entity by asset transfers. The protester further explains that, as part of the January 1, 2016 transaction, a number of contracts were novated to TASC, Inc. and TASC, Inc. changed its name to Engility Corporation. The protester states that, contemporaneously with these changes, Engility submitted a name change and novation agreement to DCMA, and also advised the DSS of the changes. The protester therefore maintains that the facility it identified in its proposal in Chantilly, Virginia, is now, and at all relevant times has been, an Engility Corporation facility approved as a top secret facility that meets the requirements of the solicitation.

The agency essentially takes the position that the solicitation required Engility to have the required clearance in order even to submit a proposal. According to the agency, Engility did not have the required top secret facility clearance for its Chantilly, Virginia facility at the time it submitted its proposal, and it was therefore reasonable to find the firm nonresponsible.

In making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Torres Int’l, LLC, B-404940, May 31, 2011, 2011 CPD ¶ 114 at 4. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. Colonial Press Int’l, Inc., B-403632, Oct. 18, 2010, 2010 CPD ¶ 247 at 2.

Here, while the record submitted by the agency appears facially to support its determination that Engility did not possess the required top secret facility clearance, Engility has tendered evidence that draws the agency’s conclusion into question. In addition, the record shows that the agency was aware of the merger transaction between TASC and Engility, and also was aware of inconsistencies between the information in the ISFD data base and other contractor databases (such as the SAM database). Despite the agency’s knowledge and these evident inconsistencies, the agency made no effort to obtain accurate, up-to-date information from either the protester, or directly from the DSS office identified in the protester’s proposal, regarding either the status of that transaction or its possible effect on the top secret facility clearance for its proposed place of performance in Chantilly, Virginia.

On the question of the agency’s knowledge of the merger between Engility and TASC, along with its knowledge of the inconsistencies between the ISFD database and other contractor databases, the record shows that the agency was aware of this transaction, as well as inconsistencies between the ISFD database and other contractor databases. In his initial e-mail to the security specialist the contract specialist stated as follows:

We know Engility purchased TASC Inc. last year in a stock buyout, but the ISFD does not reflect this change. However, the System for Award Management (attached) does show Engility Doing Business as TASC under the subject cage code and the MA [Massachusetts] address. Given the difference between the submitted information and ISFD, we are trying to conclude whether the Gov't can definitively determine the Offeror (Engility) does indeed hold the appropriate security clearance.

AR, exh. L, E-Mail Exchange between the Contract Specialist and the Security Specialist, at 8. The record includes subsequent references to the Engility-TASC merger transaction, but these references amount to unsupported conjecture on the part of either the security specialist or the unidentified DSS representative in the Chantilly, Virginia field office with whom the security specialist spoke. In this connection, the security specialist stated to the agency’s contracting officer as follows: “My guess is that the buyout has not gone through novation.” Id. at 5. She subsequently spoke with the unidentified DSS representative in Chantilly, Virginia, about the Engility-TASC merger transaction and characterized that discussion as follows:

He was not sure when Engility and TASC will complete the buyout. He thinks they are close, he really could not [say] when they will finalize the [sale]. And he would probably know more in a couple of weeks. However, there will be a lot of paperwork that is required by DSS to process the change. It depends on what is in the final agreement.

Id. at 3.

Of significance, this unsupported conjecture attributed to the unidentified DSS representative in Chantilly, Virginia was expressly relied on by the contracting officer in his determination finding Engility nonresponsible. That determination states as follows:

The Security Specialist also contacted the DSS Industrial Security Representative for Chantilly, VA. The DSS Representative in VA confirmed that he was not aware of a finalized buyout between Engility and TASC, Inc. The DSS Representative for VA stated that once a buyout is actually finalized, there is a significant amount of paperwork that must be processed, and therefore a significant amount of time and effort that must be expended in order for DSS to process changes to facilities clearances as the result of the buyout.

AR, exh. N, Nonresponsibility Determination at 2-3.

Against this backdrop, Engility has proffered evidence that appears to show that the firm does, in fact, have the required facility security clearance in the name of Engility Corporation at the Chantilly, Virginia location where it offered to perform the task order. First, the record includes evidence showing that TASC, Inc. changed its name from TASC, Inc. to Engility Corporation. In this connection, the record includes a document provided to the DCMA administrative contracting officer at the time of the January 1, 2016 name change and asset consolidation transaction. That document represents that TASC, Inc. amended its certificate of incorporation on January 1, 2016 to change its name to Engility Corporation and provided documentary evidence to the government in support of that representation. Supplemental Protest Exhibit, Change of Name and Novation Agreement, at 2.

The record also includes a Department of Defense Security Agreement executed between Engility Corporation and a representative of the DSS on January 21, 2016. Protest, exh. 5, Department of Defense Security Agreement. That document memorialized the name change from TASC, Inc. to Engility Corporation for the facility security clearance at the Chantilly, Virginia facility location identified by Engility as the place of performance for the subject task order. Id. Moreover, the protester also has submitted an e-mail from a Chantilly, Virginia DSS representative dated March 9, 2016. That e-mail acknowledges that the TASC CAGE code 9G924 (the CAGE code for the Chantilly, Virginia facility) is now an Engility Corporation CAGE code, and advised Engility to report the name change in the electronic facility clearance system: “Yes, since TASC – CAGE: 9G924 is now Engility Corporation you will also need to report the name chance in e-FCL.” Protester’s Comments, exh. 6, E-mail from the Chantilly, Virginia DSS Representative to Engility Corporation’s Director of Security, March 9, 2016.

The record also includes an e-mail from the DCMA administrative contracting officer for Engility acknowledging the name change from TASC, Inc. to Engility Corporation and identifying the reassignment of the headquarters CAGE code originally included in Engility’s proposal (4A457) to Engility Corporation. That e-mail provides: “As the result of company restructuring, TASC, using CAGE Code 4A457, became Engility, dba TASC, using CAGE Code 4A457 on Jan 1, 2016.” Protester’s Comments, exh. 7, E-mail from Engility’s DCMA Administrative Contracting Officer to Various Parties.

In sum, the record includes evidence that appears to show that, as of no later than January 21, 2016--prior to the submission of proposals--Engility Corporation had a facility with the required security clearance in Chantilly, Virginia, and this is the facility where Engility proposed to perform the task order. While we offer no dispositive opinion about the sufficiency of Engility’s security clearance for the proposed facility, the evidence presented by the protester draws into question the agency’s nonresponsibility finding.

The agency suggests that firms were advised by the RFP that this was a Federal Acquisition Regulation (FAR) part 16 acquisition and that the FAR part 15 evaluation and discussion procedures did not apply. Contracting Officer’s Statement of Facts/Agency Legal Memorandum at 19. However, the rules relating to clarifications and discussions have no application to possible inquiries regarding matters of responsibility. Simply stated, an agency’s exchanges with an offeror regarding matters of responsibility do not constitute discussions. McKissack+Delcan JV II, B-401973.2, B‑401973.4, Jan. 13, 2010, 2010 CPD ¶ 28 at 6-8. Here, any information furnished by Engility concerning its Chantilly, Virginia facility would not have related to the technical acceptability of its proposal, but rather would only have related to the firm’s responsibility. In view of the foregoing considerations, we sustain the protest.  (Engility Corporation B-413202, B-413202.2: Sep 2, 2016)

On February 24, 2015, the IFB was issued as a set-aside for service-disabled, veteran-owned small businesses (SDVOSB). IFB at 1, 5. As relevant here, the IFB stated that award would be made to the responsible bidder who submits the lowest-priced, responsive bid. IFB at 64. Additionally, the IFB stated that prior to award, the bidder shall provide three references demonstrating successful performance within the last three years of projects similar in scope and magnitude to the current procurement. IFB at 18. When bids were timely submitted and opened on April 14, Check 6 was determined to be the apparent low bidder.

(sections deleted)

The protester challenges the agency’s responsibility determination and asserts that it unreasonably failed to consider the past performance offered in Check 6’s proposal. Specifically, Hyland alleges that the projects offered were for IT projects and were completed by the President of Check 6, rather than by Check 6. Protest at 1-2; Comments at 2.

Our Office generally will not consider a protest challenging an affirmative determination of responsibility except under limited specified exceptions. Bid Protest Regulations, 4 C.F.R. § 21.5(c) (2013); Triple H Services, B-298248, B-298248.2., Aug. 1, 2006, 2006 CPD ¶ 115 at 2. One exception is where a protest identifies evidence that raises serious concerns that, in reaching a particular responsibility determination, the CO unreasonably failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. § 21.5(c) (2015). In this context, we will review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the CO may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible.

As an initial matter, we note that it is undisputed that the agency’s responsibility determination acknowledged that Check 6 had not completed any government contracts and that Check 6’s past performance was based on its President’s prior personal experience. See AR, Tab 12, Check 6 Responsibility Determination, at 3.

Despite the protester’s assertions to the contrary, the record shows that the CO specifically considered this past performance in making his responsibility determination. Additionally, we find unpersuasive the protester’s unsupported assertions that the projects presented by Check 6’s president were IT, rather than construction projects. As the protester has not shown that the CO failed to consider any available information in making his responsibility determination, the protest fails to state a sufficient legal or factual basis for consideration. (Robert F. Hyland & Sons, LLC B-411726: Sep 22, 2015)  (pdf)

UCIG argues that the agency unreasonably found LOD to be a responsible contractor. The protester contends that there is an outstanding judgment against LOD in Djibouti that the agency failed to consider in making its responsibility determination. UCIG maintains that LOD does not intend to pay fines imposed by the judgment, and that the monetary value of those fines is sufficiently large that it is reasonable to be concerned that LOD may terminate its operations in Djibouti rather than perform the awarded contract.

Our Office will consider a protest challenging an agency’s affirmative determination of responsibility where the protester identifies evidence raising serious concerns that, in reaching the responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. Bid Protest Regulations, 4 C.F.R. § 21.5(c) (2014). In this connection, the protester must present specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. The Geo Group, Inc., B‑405012, July 26, 2011, 2011 CPD ¶ 153 at 6-7. The information in question must concern very serious matters, for example, potential criminal activity or massive public scandal. Id.

We find no merit to UCIG’s protest. The record shows that the judgment in question stems from the activities of a predecessor concern, Shell Djibouti, during the time frame of 1997-2001. Agency Report at 1. During that time, Shell Djibouti was found to be responsible for polluting activities resulting in a judgment imposing fines on the concern. In 2008, Shell Djibouti was acquired by LOD and, as part of that acquisition, Shell Djibouti’s potential liability for the judgment was transferred to LOD. Id. The record shows that there was continuing litigation concerning the fine, and that the Court of Appeals of Djibouti and, ultimately, the Supreme Court of Djibouti, found the awardee liable for the fine as the successor in interest to Shell Djibouti in June, 2014. Protest, exhs. 4, 5. All parties agree that these judgments were entered.

The only evidence offered by the protester in support of its allegation that LOD intends to terminate its operations in Djibouti as a consequence of the judgment is a story included in two news sources, one entitled “Maghreb Confidential” and another entitled “African Intelligence” published more than a month after the agency’s affirmative responsibility determination. Protester’s Comments, exhs. 1 and 2. The story represents that an unidentified source of the publication reported that LOD had informed the Djibouti Ministry of Energy that the firm will be unable to pay its fines. Id.

In contrast to the protester’s news story, the record includes a letter from the Djiboutian Minister of Energy. In that letter, the Minister states that LOD and the Ministry are engaged in good faith negotiations concerning the fines. Specifically the Minister states:

Libya Oil Djibouti is one of the two major oil operating companies in Djibouti together with TOTAL Djibouti. It is fully licensed by the Ministry of Energy to operate in the territory of the Republic of Djibouti. In addition, Libya Oil Djibouti is a reputable corporate citizen in the sense that it employs a sizable number of manpower and substantially contributes to the tax revenue of the Republic of Djibouti.

With regards to the environmental legal issue, it is worth noting that the origin of the case dates back to over 14 years and the companies who were [involved in the litigation] were Shell Djibouti, TOTAL Djibouti and Mobil Djibouti respectively. Therefore Libya Oil who purchased Shell Djibouti in 2008 only inherited the problem and accordingly the related legal judgment whose implementation is currently under negotiation.

Agency Report, exh. 17, Letter from Djibouti Ministry of Energy, at 3. The record also includes a supply agreement between LOD and the Djibouti Oil Supply company, a Djiboutian government-owned oil supplier that all offerors were required to use in connection with performance of the contract. AR, exh. 4, Supply Agreement. Finally, the agency notes that LOD already has been delivering petroleum supplies within Djibouti under other CLINS of the contract that was awarded to LOD. Agency Report at 6.

In the final analysis, the protester’s argument essentially relies on a single news story, published more than a month after the agency’s affirmative responsibility determination. That news story, in turn, relies on an unidentified source for its information. We conclude that the protester has not shown that the contracting officer unreasonably failed to consider available, relevant information, the nature of which would be expected to have a strong bearing on whether LOD should be found responsible.  (United Capital Investments Group, B-410284: Nov 18, 2014)  (pdf)

ATL protests that it should have been awarded a contract, complaining that the agency has not provided ATL with the information which led to the agency’s non‑responsibility determination and asserting that “[s]uch information was required to be provided.” Protest at 5.

As the United States Court of Federal Claims has stated, although the vendor vetting rating process does not provide a contractor with prior notice of its ineligible status or an opportunity to present rebuttal evidence, requiring traditional due process in the rating process would adversely affect national security. NCL Logistics Co. v. United States, 109 Fed. Cl. 596, 620 (2013). The court elaborated that the requirements of due process vary given the circumstances and, in the environment of a warzone, when the required notice would necessarily disclose classified material and could compromise national security, normal due process requirements must give way to national security concerns. Id. We agree.

Here, in considering ATL’s protest, and the agency response thereto, our Office reviewed classified information supporting the agency’s risk assessment and non‑responsibility determination. Based on our review, we think the agency’s decision to reject this proposal was reasonable.  (Aria Target Logistics Services, B-408308.23: Aug 22, 2014)  (pdf)

Affirmative determination of responsibility

The protester challenges the contracting officer’s affirmative determination of Rotech’s responsibility. B&B contends that the contracting officer failed to consider available relevant information in determining that Rotech had the financial resources to perform the contract and a satisfactory record of integrity and business ethics.

Contracts may only be awarded to responsible prospective contractors. Federal Acquisition Regulation (FAR) § 9.103(a). In making a responsibility determination, the contracting officer 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), and that the contractor has “a satisfactory record of integrity and business ethics.” FAR § 9.104-1(d). In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer is to make a determination of nonresponsibility. FAR § 9.103(b).

Because the determination that an offeror is capable of performing a contract is largely committed to the contracting officer’s discretion, our Office will generally not consider a protest challenging such a determination. Bid Protest Regulations, 4 C.F.R. § 21.5(c) (2013). One of the circumstances in which we will make an exception to the general rule is where a protest identifies evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information. Id.; Verestar Gov’t Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD ¶ 68 at 3. This exception was intended to encompass protests raising supported allegations that the contracting officer had ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 14.

Here, in accordance with internal VA guidance instructing contracting officers to request Dun & Bradstreet (D&B) supplier qualifier reports to assist with contractor responsibility determinations, AR, Exh. 13, VA Information Letter 049-08-03, at 1, the contracting officer obtained a D&B report to assist her in determining whether Rotech had the financial resources to perform the contract. D&B reported that Rotech had a supplier evaluation risk (SER) rating of 9 on a scale of 1 (lowest risk) to 9 (highest risk). AR, Exh. 6, D&B Supplier Analysis Report for Rotech, at 1. D&B further reported that Rotech’s SER rating showed a financial condition rated as unbalanced; a high proportion of past due balances to total amount owing; a low proportion of satisfactory payment experiences to total payment experiences; and a high proportion of slow payment experiences to total number of payment experiences. Id. at 2.

The report included the following entries under the heading “Special Events:”

As of 12/27/2012

LINE OF CREDIT: According to published reports, Rotech Healthcare Inc. announced that it has entered into a new term loan credit agreement with Silver Point Finance, LLC relating to a new term loan credit facility in an aggregate principal amount of $25 million. The Company borrowed $23.5 million under the new facility on December 21, 2012. The remaining $1.5 million portion of the new facility not yet borrowed may be borrowed on a delayed draw basis on or before January 1, 2014, so long as certain limited conditions as set forth in the credit agreement are satisfied. The facility replaces and repays the Company’s existing commitments and loans under our prior credit agreement, and, assuming the Company will borrow the $1.5 million portion of the facility not yet borrowed, increases our available liquidity by approximately $15 million.

* * *

As of 11/15/2012

EARNINGS UPDATE: According to published reports, comparative operating results for the 9 months ended September 30, 2012: Revenue of $347,300,000, Net Income of $43,800,000; compared to Revenue of $365,400,000, Net Income of $7,700,000 to the comparable period in the prior year.

Id. at 4.

After reviewing the information in the D&B report, the contracting officer concluded that Rotech had adequate financial resources to perform the contract. The contracting officer documented the basis for her conclusion as follows:

Although their D&B [SER] rating reflected a score of 9 indicating they are financially sound to perform the services in accordance with the Statement of Work and performance schedule. D&B shows Rotech Healthcare Inc. would have a low risk of late payment beyond terms. According to published reports as of 12/27/2012 Rotech Healthcare Inc. announce[d] that it has entered into a new term loan credit agreement with Silver Point Finance, LLC relating to a new term loan credit facility in an aggregate principal amount of $25 Million. As of 11/15/2012 comparative operating results for the 9 months ending September 30, 2012 show Rotech continues to grow net income. Revenue during this 9 month period was $365,400,000 compared to $347,300,000 in the comparable period of the prior year and Net income was $43,800,000 compared with $7,700,000 in the comparable period. Furthermore, the contractor is successfully performing these services for the Department of Veterans Affairs in VISN 18, VISN 20, and for the Coatesville VAMC centers and commercial entities.

AR, Exh. 6, Determination of Contractor’s Responsibility at 1. The contracting officer also found that Rotech had a satisfactory record of integrity and business ethics and that it otherwise met the general standards to be determined a responsible prospective contractor. In this regard, the record shows that she reviewed the Federal Awardee Performance and Integrity Information System (FAPIIS), which did not contain any records regarding Rotech. Additionally, the contracting officer noted that Rotech did not appear on any of the debarred or suspended contractor lists or on the Office of the Inspector General excluded entities list. She also noted that Rotech was successfully performing other VA home oxygen services contracts of the same magnitude and scope as the contemplated contract. Id.; AR, Exh. 5, Contracting Officer’s Statement at 3.

The protester argues that the contracting officer unreasonably failed to consider available relevant information in concluding that Rotech had adequate financial resources to perform.[6] In this connection, B&B maintains that the contracting officer ignored information in the D&B report concerning Rotech’s payment problems; considered only selected portions of the information pertaining to its new $25 million loan facility; and unreasonably failed to consider financial reports filed by Rotech with the Securities Exchange Commission (SEC), which showed that Rotech had a loss of $43.7 million, rather than a net income of $43.7 million, for the first 9 months of 2012. The protester also argues that in finding Rotech financially responsible, the contracting officer either ignored or unreasonably failed to consider information indicating that the company had emerged from Chapter 11 bankruptcy in 2002 with a significant debt burden.

The record does not support the protester’s contention that the contracting officer ignored information in the D&B report concerning Rotech’s payment problems; rather, it supports the view that she considered the information and concluded that it showed a low risk of late payment. Similarly, the record fails to establish that the contracting officer ignored information in the D&B report pertaining to Rotech’s new loan facility. In this regard, the contracting officer states that she viewed Rotech’s D&B report, and the mere fact that she cited only the aggregate principal amount of the loan credit facility in her responsibility determination does not show that she failed to consider other information in the report pertaining to the loan. With regard to B&B’s argument that the contracting officer unreasonably failed to consider the content of financial reports filed with the SEC, the protester has not shown that the contracting officer acted unreasonably in relying on information contained in the D&B report as opposed to conducting a further investigation regarding the validity of the information in the report. In any event, to the extent B&B is challenging the adequacy and reasonableness of the contracting officer’s investigation, this challenge does not present an exception to our rules barring consideration of challenges to an agency’s affirmative determination of responsibility. See USS Chartering, LLC, B-407601, Jan. 15, 2013, 2013 CPD ¶ 69 at 4.

Additionally, we are not persuaded that the contracting officer unreasonably failed to consider information indicating that Rotech had emerged from Chapter 11 bankruptcy in 2002 with a significant debt burden. Rotech’s involvement in bankruptcy proceedings a decade ago is not a matter that, by its nature, would be expected to have a strong bearing on whether Rotech should be found responsible now. To the extent the protester’s focus is on the debt burden that resulted from the bankruptcy proceedings, the record does not establish that the contracting officer failed to consider Rotech’s heavy debt burden; rather, it indicates that she thought the company had the financial resources to perform despite its debt burden.

The protester also argues that in finding Rotech to be responsible, the contracting officer failed to consider available relevant information pertaining to Rotech’s record of integrity and business ethics. In this connection, B&B contends that she failed to consider that: (1) in 2002, Rotech paid the United States $17 million to resolve allegations that the company had fraudulently overbilled government healthcare programs for respiratory equipment, supplies, and services; (2) in 2004, Rotech did not comply with all delivery schedules for medical equipment contracts within VISN 16; (3) in 2008, Rotech entered into a 3-year Corporate Integrity Agreement with the Office of Inspector General of the U.S. Department of Health and Human Services in connection with the resolution of a qui tam complaint brought by one of Rotech’s former employees, which alleged false and fraudulent conduct in billing for medical equipment; (4) in 2010, Rotech had problems complying with delivery schedules and performance requirements in performing home oxygen and medical equipment contracts for VISN 21; and (5) on May 25, 2012, Rotech publicly reported that it had identified an error in its billing system that had resulted in its being overpaid in fiscal years 2009-2011.

Some of the foregoing items concern matters that occurred a number of years (i.e., approximately 10 or more) years in the past; others concern matters apparently resolved by Rotech with the government, matters that involve relatively low dollar values, and/or matters that reflect Rotech’s voluntary efforts to comply with its contractual obligations. We find that these matters fail to meet the threshold for our review since the information allegedly not considered by the contracting officer is not the sort of information that would be expected to have a strong bearing on her responsibility determination. See Wild Building Contractors, Inc., B-293829, June 17, 2004, 2004 CPD ¶ 131 at 5; The GEO Group, Inc., B-405012, July 26, 2011, 2011 CPD ¶ 153 at 7. Accordingly, this aspect of B&B’s protest is dismissed.  (B&B Medical Services, Inc., B-407113.3, B-407113.4, Jun 24, 2013)  (pdf)

Colonial Press argues that, as a small business, concerns over its responsibility should have been referred to the Small Business Administration (SBA) for consideration under that agency’s certification of competency (COC) process. Colonial Press also argues that, even if the GPO is not subject to the SBA’s COC process, the nonresponsibility determinations were unreasonable. As explained below, we disagree with Colonial Press on both points, and deny the protest.

First, our Office has consistently held that GPO, as a legislative branch agency, is not subject to the COC referral requirements of the Small Business Act, 15 U.S.C. § 637(b)(7) (2006 & Supp. V 2011). Downtown Legal Copies, B-289432, Jan. 7, 2002, 2002 CPD ¶ 16 at 4; Shepard Printing, B-260362 et al., June 6, 1995, 95-2 CPD ¶ 119 at 3 n.2; Computer Support Sys., Inc., B-261166, July 18, 1995, 95-2 CPD ¶ 30 at 2 n.2; Fry Commc’ns, Inc., B-207605, Feb. 1, 1983, 83-1 CPD ¶ 109 at 2-5. Although Colonial Press argues that the Small Business Act should not be interpreted as exempting the GPO, we have consistently rejected essentially the same argument. See, e.g., Fry Commc’ns Inc., supra, at 5. Accordingly, the GPO was not required to refer its nonresponsibility determinations of Colonial Press to the SBA.

Second, we conclude that the contracting officer reached a reasonable determination that Colonial Press’s late deliveries rendered the firm not responsible. The GPO awards contracts under the authority of the GPO Printing Procurement Regulation (PPR). In a policy analogous to the Federal Acquisition Regulation responsibility requirements, the PPR provides that GPO contracts may be awarded to “responsible prospective contractors only.” PPR chapt. I, § 5.1. The PPR also establishes the minimum standards of responsibility which include the ability to “comply with the proposed delivery schedules” and possession of a “satisfactory record of performance in regard to both quality and timeliness on previously awarded contracts.” Id. at § 5.4.

Colonial Press concedes that it made late deliveries under three printing contracts, but it argues that those contracts are distinguishable from the work under these IFBs (such as a shorter delivery time in one case, and a longer time in another). Colonial Press also states that the late deliveries were excusable, and the reasons for them have been corrected. As a result, Colonial Press argues, the GPO’s nonresponsibility determinations were unreasonable. Protester’s Comments (B-408055) at 3-5.

A contracting officer is vested with broad discretion in exercising his or her business judgment in making a nonresponsibility determination. Document Printing Serv., Inc., B-256654, B-257051, July 8, 1994, 94-2 CPD ¶ 13 at 3. Our Office generally will not disturb a nonresponsibility determination unless a protester can show either that the procuring agency had no reasonable basis for the determination or that it acted in bad faith. Id. In our review of nonresponsibility determinations, we consider only whether the negative determination was reasonably based on the information available to the contracting officer at the time it was made. IPI Graphics, B-286830, B-286838, Jan. 9, 2001, 2001 CPD ¶ 12 at 3 (protest denied where record of protester’s failures to meet printing quality requirements in recent contracts were a reasonable basis for nonresponsibility determination by GPO).

The record here supports the reasonableness of the contracting officer’s determination, with respect to Colonial Press’s bid under each IFB, that the firm was not responsible because its recent performance on printing contracts had shown an inability to meet delivery requirements. Although Colonial Press argues that it successfully delivered on time on other GPO contracts, this does not render the contracting officer’s judgment that late deliveries on 16 percent (three out of 18) of its contracts represented an unsatisfactory record of recent performance. Also, while Colonial Press argues that each of the late deliveries was distinguishable from the work required under these IFBs--and that Colonial Press was not at fault--the firm does not dispute that each delivery was late. We do not think that the contracting officer was limited to considering only contracts that were effectively indistinguishable from the scope of work here in considering whether Colonial Press was responsible. Rather, the contracting officer reasonably considered multiple late deliveries in relatively recent GPO contracts for printing, and concluded that Colonial Press’s explanations left doubt as to whether the firm had the capability to fulfill the delivery requirements of the contracts under consideration. Those facts provide a reasonable basis for the contracting officer’s nonresponsibility determination.  (Colonial Press International, Inc. B-408031, B-408055, May 6, 2013)  (pdf)

Responsibility

Supreme argues that its October 26 letter put the agency on notice that ANHAM may lack the capacity to perform the contract. Protest at 24-25. Supreme argues that the agency failed to consider this information in its affirmative responsibility determination for ANHAM, and, therefore, the agency’s determination was improper. Protest at 24-25; Supreme Comments at 16-20; Supreme Supp. Comments at 6-10; Supreme Post-Hearing Comments at 15-30.

The agency and ANHAM maintain that Supreme’s claim is untimely based on the same arguments raised against Supreme’s misrepresentation claim. AR at 35-36; ANHAM Comments at 15-16.

The factual basis of Supreme’s claim is that actions of Afghanistan’s government may jeopardize ANHAM’s ability to perform the SPV contract. Supreme first learned of the governmental action through the August 27 NEC letter, which Supreme obtained on October 4. On October 11, less than 10 days later, our Office sustained Supreme’s initial post-award protest. Thus, within 10 days of receiving the August 27 letter, the only responsibility determination that the information in the letter could have been used to challenge was the prospective responsibility determination that would occur if the agency affirmed the award to ANHAM.

A protester need not file a “defensive” protest where an agency has not made a final determination regarding responsibility since a protester may presume that the agency will act properly. See Dock Express Contractors, Inc., B-227865.3, Jan. 13, 1988, 88-1 CPD ¶ 23 at 6; see also American Multi Media, Inc.--Recon., B-293782.2 , Aug. 25, 2004, 2004 CPD ¶ 158 at 3. If Supreme had protested within 10 days of receiving the NEC letter, the protest would have been premature because, at that time, the agency had not yet acted in response to our decision. See Alatech Healthcare, LLC--Protest; Custom Servs. Int’l, Inc.--Costs, B-289134.3, B-289134.4, Apr. 29, 2002, 2002 CPD ¶ 73 at 6 n.6; Johnson Controls World Servs., Inc., B-286714.3, Aug. 20, 2001, 2001 CPD ¶ 145 at 5. After the agency affirmed ANHAM’s award (which implicitly meant that the agency had found ANHAM to be responsible), Supreme filed a protest with our Office within 10 days. Accordingly, we consider Supreme’s challenge to the agency’s responsibility determination here to be timely.

The agency and ANHAM also assert that we should dismiss Supreme’s responsibility claim because in their view, it is outside the scope of matters that our Office will review. Because the determination that an offeror is capable of performing a contract is largely committed to the contracting officer’s discretion, our Office generally will not consider a protest challenging an affirmative determination of responsibility except under limited specified exceptions. 4 C.F.R. § 21.5(c); ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ 234 at 13. One specific exception is where a protest identifies evidence raising serious concerns that a contracting officer, in making an affirmative determination of responsibility, unreasonably failed to consider available relevant information. 4 C.F.R. § 21.5(c); ESCO Marine, Inc., supra. In this context, we will review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Marinette Marine Corp., B-400697 et al., Jan. 12, 2009, 2009 CPD ¶ 16 at 24; ESCO Marine, Inc., supra.

Here, we conclude that the protest is within our jurisdiction to review because Supreme has argued that the contracting officer unreasonably failed to consider specific information--namely, the October 26 letter--regarding whether ANHAM would have the capacity to perform the contract. See Active Deployment Sys., Inc. B-404875, May 25, 2011, 2011 CPD ¶ 113 at 3; ESCO Marine, Inc., supra, at 13.

The agency responds to the merits of Supreme’s claim by asserting that the contracting officer did consider the October 26 letter, as documented in his memorandum for the record. AR at 78. The contracting officer’s memorandum is the only contemporaneous document that addresses Supreme’s October 26 letter. In relevant part, the memorandum states:

Anham was determined responsible at the time the original award was made. If the original award decision is affirmed, [the agency] would not need to reconsider the original responsibility determination because the requirements of the solicitation were not otherwise amended or changed. Similarly, the Contracting Officer is not aware of any independent information substantiating the allegations raised by Supreme which would warrant further inquiry. To the extent any of the concerns raised by Supreme affect the ultimate awardee’s performance, such issues will be dealt with as a matter of contract administration.

AR, Tab 72, Memorandum for Record, at 1. In our view, these statements do not adequately reflect whether or not the contracting officer, in making his responsibility determination, unreasonably failed to consider the information in Supreme’s letter. Accordingly, our Office convened a hearing to take testimony from the contracting officer regarding his consideration of the letter.

In the course of the hearing, the contracting officer testified that after receiving the letter, he shared and discussed it in multiple meetings with two other contracting officers involved with Afghanistan food service contracts, his supervisor, counsel, and the director and deputy director of the agency’s subsistence directorate. Tr. at 15, 31, 155-57. He testified that based on these meetings and his experience with other relevant contracts, he determined that the allegations in the letter were not credible. See id. at 51, 93, 116, 155.

The contracting officer also provided testimony regarding specific reasons that he did not find the letter credible. For example, he testified that in his view, the allegations were undercut by the footnote in the letter stating that Supreme itself could not verify the allegations. Id. at 51, 133-34. He also testified that with regard to the state-ordered removal of a fence at an ANHAM facility in Kuwait, he was aware that ANHAM eventually prevailed in the dispute and rebuilt the fence. Id. at 53-55, 62-63. As another reason why he did not find the letter credible, he testified that he was not aware of any press coverage of an issue with the Bagram facility, and that he had not received any information about such an issue from agency personnel in Afghanistan, the Department of State, or from any other United States agency. Id. at 42-43, 52, 71-72, 135-36. He testified that ordinarily he would receive communications regarding such issues in the normal course of business, although he also testified that he did not solicit information to substantiate the letter from anyone outside of his contracting office. Id. at 52, 92-93.

The contracting officer also testified that he did not find the letter credible because the NEC letter was from a committee of Afghanistan’s lower legislative body, rather than from an executive branch of the government, and because the NEC letter was not specifically addressed to ANHAM. Id. at 45, 47-48. He testified that in his experience, when the government of Afghanistan has a concern about a contractor’s compliance with a local law, the executive branch of government--i.e., one of the ministries--communicates directly with the contractor. Id. at 46-48, 108. Finally, he testified that he had seen photographs of the Bagram facility that ANHAM had submitted on October 4, and the photographs seemed to him to be consistent with ANHAM’s proposed use of the land. See id. at 141-42.

The record here shows that the contracting officer was aware of and considered the specific allegations and information in Supreme’s October 26 letter. For various reasons, including those discussed above, the contracting officer concluded that the allegations were not credible enough to warrant further inquiry. While Supreme maintains that the contracting officer gave “virtually no consideration” to the October 26 letter, Supreme Post-Hearing Comments at 10, the record shows otherwise. Accordingly, Supreme’s claim that the agency unreasonably failed to consider available relevant information in connection with the responsibility determination is denied. See USS Chartering, LLC, B-407601, Jan. 15, 2013, 2013 CPD ¶ __ at 4; T.F. Boyle Transp., Inc., B-310708, B-310708.2, Jan. 29, 2008, 2008 CPD ¶ 52 at 6; Brian X. Scott, B-298568, Oct. 26, 2006, 2006 CPD ¶ 156 at 4.

Supreme argues that the contracting officer did not adequately investigate the allegations in the October 26 letter, and that if he had, he would have found information to substantiate the allegations. Protest at 18; Supreme Comments at 19; Supreme Post-Hearing Comments at 8-9, 21-22, 30-33, 38, 40, 47. We recognize that Supreme is able to point to certain evidence that the contracting officer apparently did not consider--e.g., the lease and transcripts of certain Afghanistan parliamentary sessions. However, a dispute over the amount of information on which an affirmative responsibility determination is based, or disagreement with the contracting officer’s determination, does not fall within the circumstances under which our Office will review such a determination. See USS Chartering, LLC, supra, at 4; Nilson Van & Storage, Inc., B-310485, Dec. 10, 2007, 2007 CPD ¶ 224 at 4; Universal Marine & Indus. Servs., Inc., B-292964, Dec. 23, 2003, 2004 CPD ¶ 7 at 4; see also 67 Fed. Reg. 79,833, 79,834 (Dec. 31, 2002) (GAO’s review of protests under the exceptions specified in 4 C.F.R. § 21.5(c) involves “a contracting officer’s failure to consider ‘available relevant information,’ rather than the reasonableness of the contracting officer’s judgments based on that information, or his or her failure to obtain information through an exhaustive investigation”); but see FN Mfg., Inc., supra, at 11-12; Southwestern Bell Tel. Co., B-292476, Oct. 1, 2003, 2003 CPD ¶ 177 at 7-11. Our inquiry is whether the contracting officer unreasonably failed to consider available relevant information in making the responsibility determination. Based on the record here, we cannot conclude that such a failing occurred. Supreme’s challenge to the agency’s responsibility determination is denied.  (Supreme Foodservice GmbH, B-405400.6, B-405400.7, Mar 27, 2013)  (pdf)

Affirmative Determination of Responsibility

USS Chartering objects to the agency’s affirmative responsibility determination of Crowley Petroleum, arguing that the CO failed to consider relevant information and unreasonably ignored adverse information pertaining to Crowley Liner’s integrity. In this regard, the protester points to evidence that it gathered from public records, including court documents, which the protester contends shows that the two firms share key personnel, office space, and operations structures, such that the agency should have found the two firms to be “a single entity.” Protest at 6, 7.

As a general matter, our Office does not review an affirmative determination of responsibility by a CO. 4 C.F.R. § 21.5(c) (2012); CapRock Gov’t Solutions, Inc.; ARTEL, Inc.; Segovia, Inc., B-402490 et al., May 11, 2010, 2010 CPD ¶ 124 at 26; Navistar Defense, LLC; BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD ¶ 258 at 20. We will, however, review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the CO may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Compare Southwestern Bell Tel. Co., B-292476, Oct. 1, 2003, 2003 CPD ¶ 177 (CO generally aware of allegations of misconduct by awardee and took no steps to consider the awardee’s record of integrity and business ethics) with Verestar Gov’t Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD ¶ 68 at 4-5. (CO aware of adverse information concerning the awardee’s integrity and considered it).

As described above, the record here shows that the CO was aware of the adverse information concerning Crowley Liner and considered the relationship of the two firms. The CO concluded from his review that the two firms were not so closely affiliated or jointly controlled such that the adverse information concerning Crowley Liner should be imputed to Crowley Petroleum. Thus, the record shows that the CO was aware of and did consider whether the misconduct of Crowley Liner affected Crowley Petroluem’s responsibility. Although USS Chartering challenges the adequacy and reasonableness of the CO’s investigation, this challenge does not present an exception to our rules barring consideration of challenges to an agency’s affirmative determination of responsibility. See CapRock Gov’t Solutions, Inc.; ARTEL, Inc.; Segovia, Inc., supra, at 26. Moreover, we also conclude that the protester’s arguments concerning the allegedly close affiliation of Crowley Petroleum and Crowley Liner reflect disagreement with the CO’s judgment that the two firms were not so closely affiliated or jointly controlled.  (USS Chartering, LLC, B-407601, Jan 15, 2013)  (pdf)

With regard to the license requirement, PS asserts that DLG did not comply with a phase 2 solicitation provision (clause I.77) that required each offeror to possess a license to do business in Iraq. PS argues that the license must be held by the joint venture, not just one of the joint venture members, and that the clause imposes a definitive responsibility criterion that DLG did not satisfy.

Normally, a general solicitation provision mandating that the contractor obtain all necessary licenses or permits needed to perform the work does not require that a bidder or offeror demonstrate compliance prior to award. Mid-America Mgmt. Servs., Inc., B-244103, June 5, 1991, 91-1 CPD ¶ 537 at 1-2. Instead, the securing of licenses and permits is a performance requirement that may be satisfied during contract performance and does not affect the award decision except as a general responsibility matter. HAP Constr., Inc., B-278515, Feb. 9, 1998, 98-1 CPD ¶ 48 at 2-3. Our Bid Protest Regulations generally preclude our review of a contracting officer’s affirmative determination of an offeror’s responsibility. 4 C.F.R. § 21.5(c) (2012).

However, there is an exception to that rule where a protester shows that a definitive responsibility criterion in the solicitation was not met. Id. A definitive responsibility criterion is a specific and objective standard, qualitative or quantitative, that is established by a contracting agency in a solicitation to measure an offeror's ability to perform a contract. Supreme Foodservice GmbH, B-405400, B-405400.2, Oct. 31, 2011, 2011 CPD ¶ 244 at 14. In order to be a definitive responsibility criterion, the solicitation provision must reasonably inform offerors that they must demonstrate compliance with the standard as a precondition to receiving the award. Public Facility Consortium I, LLC; JDL Castle Corp., B-295911, B-295911.2, May 4, 2005, 2005 CPD ¶ 170 at 3. As applied to a requirement for licensing, if the solicitation does not obligate a bidder to possess or show the ability to obtain a particular license before award, it is not a definitive responsibility criterion; rather, it is a contract performance requirement that does not affect a decision to award a contract. Restec Contractors, Inc., B-245862, Feb. 6, 1992, 92-1 CPD ¶ 154 at 4; see also Evergreen Int’l Airlines, Inc., B-244284, Aug. 15, 1991, 91-2 CPD ¶ 154 at 3 (solicitation clause requiring a government approval document was not a definitive responsibility criterion because clause was addressed to “contractor,” rather than “bidders,” and did not state that requirement applied before award).

Our review of the RFP does not support PS’s argument that clause I.77 imposes a definitive responsibility criterion. As noted above, clause I.77 appeared in section I of the RFP, which was a list of “contract clauses.” AR, Tab 7, RFP, at 74. Clause I.77 by its own terms states that the “contractor warrants” that it has various licenses to do business in the relevant country, and has other licenses needed to perform. Id. In our view, such a standard warranty--particularly one that, by its terms, states that the “contractor” (rather than the “offeror”) is to make the representation--is not a definitive responsibility criterion. See Evergreen Int’l Airlines, Inc., supra, at 3. Clause I.77 does not reasonably inform offerors that they must demonstrate compliance before award. Accordingly, PS’s challenge to the award on the basis that DLG failed to meet a definitive responsibility criterion in clause I.77 is denied.  (Pernix-Serka LP, B-407656,B-407656.2, Jan 18, 2013)  (pdf)

The central issue in this protest is whether certain questions about the compliance of PK’s bid with the solicitation’s key personnel requirements concern the responsiveness of the bid or the responsibility of the bidder. Coastal asserts that the awardee’s bid should have been rejected as nonresponsive for submitting key personnel resumes that failed to demonstrate the required experience.[1] In addition to Coastal’s arguments that the resumes submitted by PK were so inadequate that PK’s bid should have been viewed as taking exception to the IFB’s experience requirements, Coastal contends that certain unique performance requirements in the IFB’s PWS shifted what might traditionally be viewed as a matter of responsibility to one of responsiveness. We disagree.

Responsiveness concerns a bidder’s commitment to provide the required goods or services and must be determined by the agency from the face of the bid at bid opening, Propper Manufacturing Co., Inc.; Columbia Diagnostics, Inc., B-233321, B-233321.2, Jan. 23, 1989, 89-1 CPD ¶ 58; nonresponsive bids may not be accepted. Sac & Fox Indus., Ltd., B-231873, Sept. 15, 1988, 88-2 CPD ¶ 250. In contrast, responsibility relates to a bidder’s capability to perform the contract. Beta Construction Co., B-274511, Dec. 13, 1996, 96-2 CPD ¶ 230 at 2. Specifically, the Small Business Act identifies the elements of responsibility as “including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity.” 15 U.S.C. § 637(b)(7)(A) (2006).

Under the Small Business Act, the SBA has conclusive authority to determine the responsibility of small business concerns. In this regard, 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 SBA for a final determination under its certificate of competency procedures. Federal Acquisition Regulation (FAR) §§ 19.602-1(a)(2), 19.602-4(b); see also Specialty Marine, Inc., B-292053, May 19, 2003, 2003 CPD ¶ 106 at 3.

As an initial matter, we conclude that the solicitation requirements at issue here involved matters of responsibility, not responsiveness. For example, in Joint Venture Conscoop-Meyerinck, B-278243.4, Mar. 18, 1998, 98-1 CPD ¶ 83 at 3, an IFB required bidders for a contract to extend a refueling system to employ an experienced systems integrator, and to submit with their bids a resume for its system integrator with a certification of experience to include three similar projects. We held that the agency properly considered supplemental information about the experience requirement that was furnished after bid opening because the requirement for the use of an experienced systems integrator was a matter of responsibility, that is, the bidder’s ability to perform the work.

Likewise, in DAVSAM Int’l, Inc., B-218201.3, Apr. 22, 1985, 85-1 CPD ¶ 462, an IFB required bidders for a food service contract to submit with their bids resumes of supervisory personnel, as well as information on the bidder’s previous experience, the role of the project manager, and management plans and procedures. While the IFB indicated that failure to provide the information would render the bid nonresponsive, we held that such information clearly related to responsibility, that is, the bidder’s apparent ability and capacity to perform the contract requirements, and that a contracting agency cannot, merely by the terms of the solicitation, change a matter of responsibility into one of responsiveness. DAVSAM Int’l, Inc., supra, at 3.

Similarly, in Science Applications, Inc., B-193479, Mar. 8, 1979, 79-1 CPD ¶ 167, an IFB required bidders, “[i]n order to be responsive,” to submit resumes for professional employees establishing that the employees met specific minimum experience requirements. Science Applications, Inc., supra, at 2. In addressing this requirement, we first observed that a contracting agency cannot make a matter of responsibility into a question of responsiveness by the terms of the solicitation. Id. at 3. We then held that the failure of one of the bidder’s resumes to establish that the project coordinator had the required three years of progressively responsible experience in a related educational or technical field concerned the responsibility of the bidder, amounting to a definitive responsibility criteria, and did not relate to responsiveness. In this regard, our Office stated that

[i]t is well settled that solicitation provisions requiring the submission of information necessary to determine compliance with specified bidder experience requirements pertain solely to the bidder’s responsibility, i.e., its overall capacity to perform the prospective contract, and that such information need not be submitted with the bid but may be furnished up to the time of award.

Id. at 2-4.

Coastal also argues that the experience requirements in this IFB have been changed to matters of responsiveness in light of the PWS requirement in this solicitation barring any changes to key personnel within 180 days of contract award. PWS § 2.1. In Coastal’s view, this requirement creates a performance obligation out of the experience requirement, transforming an otherwise responsibility matter into a responsiveness one.

We disagree with Coastal that the specific language of the PWS here changes the nature of these experience requirements from matters of responsibility to matters or responsiveness. Whenever an agency requests resumes as part of the submission of bids or proposals, there is a reasonable expectation that those individuals for whom resumes have been submitted are the personnel who will perform the contract. For that reason, a firm that knowingly or negligently represents that it would rely on specific personnel that it did not expect to furnish during contract performance may be found to have established an impermissible bait and switch scheme, where that misrepresentation was relied on by the agency and had a material effect on the evaluation results. Data Mgmt. Servs. Joint Venture, B-299702, B-299702.2, July 24, 2007, 2007 CPD ¶ 139 at 10. In our view, a responsibility-type factor going to the capability of the bidder remains a matter of responsibility, notwithstanding any subsequent, associated, performance obligations.

Coastal’s assertion that PK’s bid, in essence, took exception to the IFB’s experience requirements arises from the fact that, although the bid included resumes and described experience, the resumes, on their face, did not clearly establish the ways in which the experience proffered was related to the experience sought. In TYBRIN Corp., B-298364.6 et al., Mar. 13, 2007, 2007 CPD ¶ 51, our Office held that a proposal which on its face took exception to a limitation on subcontracting was nonresponsive for failure to comply with a material term of the solicitation. We noted in that decision that the issue

does not concern whether a bidder or offeror can or will comply with the subcontracting limitation requirement during performance of the contract (where we recognize that the matter is one of responsibility (or in certain cases, contract administration . . . )), but rather, whether the bidder or offeror has specifically taken exception to the subcontracting limitation requirement on the face of its bid or proposal.

Id. at 6. Because the proposal at issue in TYBRIN specifically took exception to a material term, the limitation on subcontracting, it was unacceptable. Id. at 6-7. Here, in contrast, we do not think that PK’s bid, on its face, took exception to the key personnel requirements. While the bid cannot reasonably be described as fully addressing the experience requirements, we are not prepared to conclude that the bid took issue with those requirements, as in TYBRIN.

Finally, Coastal also argues that in negotiated procurements, our Office has treated personnel experience and qualifications requirements as a matter of technical acceptability, akin to a question of responsiveness, and that therefore we must likewise view the key personnel experience requirements in this IFB as a matter of bid responsiveness. We again disagree. Our Office treats questions of responsibility consistently under sealed bidding and under negotiated procurement procedures. See Docusort, Inc., B-254852, Jan. 25, 1994, 94-1 CPD ¶ 38 (when a minimum management experience requirement, a traditional responsibility factor, is evaluated on go/no go basis, rejection of proposals solely on the basis of the offeror’s failure to comply with such a factor must be referred to SBA); Paragon Dynamics, Inc., B-251280, Mar. 19, 1993, 93-1 CPD ¶ 248 at 4 (failure on the part of the offeror's proposed software development engineer to meet the minimum experience and capability requirements concerned a responsibility-related factor); ASR Mgmt. & Tech. Servs., B-244862, B-247422, Apr. 23, 1992, 92-1 CPD ¶ 383 at 7 (noting that, although personnel qualifications are a “responsibility-type factor,” when they are evaluated on a comparative basis, they may properly be considered in an agency’s selection decision). In addition, the Small Business Act requires referral to SBA of questions of responsibility even where negotiated procurement procedures are used. See, e.g., Phil Howry Co., B-291402.3, B–291402.4, Feb. 6, 2003, 2003 CPD ¶ 33 at 5.

In sum, given the above case law with respect to key personnel requirements used to assess the capability of a bidder, we find no basis to object to EPA’s determination to make award to PK following SBA’s issuance of a COC to the firm in response the contracting agency’s nonresponsibility determination.

The protest is denied.  (Coastal Environmental Group, Inc., B-407563, B-407563.3, B-407563.4, Jan 14, 2013)  (pdf)

With regard to Orion’s remaining ground of protest, Orion essentially argues that, notwithstanding the SBA’s refusal to issue a COC, the contracting officer should have reversed his prior negative responsibility determination and made award to Orion after he received the September 22 Northrop Grumman e-mail stating that it would not let Orion fail. In this regard, Orion cites FAR § 19.602-3(c)(3), and the SBA’s regulations at 13 C.F.R. § 125.6(n), which state that “[d]enial of a COC by SBA does not preclude a contracting officer from awarding a contract to the referred firm, nor does it prevent the concern from making an offer on any other procurement.”

Where, as here, a small business is determined to be non-responsible, the matter must be referred to SBA for review under SBA’s COC procedures since, under 15 U.S.C. § 637(b)(7) (2006), SBA has the conclusive authority to determine a small business firm’s responsibility by issuing or refusing to issue a COC. Because SBA, not our Office, has conclusive authority to determine a small business firm’s responsibility, we generally will not review the SBA’s refusal to issue a COC, absent a showing of bad faith or failure to consider vital information. Bid Protest Regulations, 4 C.F.R. § 21.5(b)(2) (2011).

Notwithstanding SBA’s conclusive authority to determine a small business firm’s responsibility through the COC procedures, our Office has previously concluded that where new information probative of small business responsibility comes to light for the first time after denial of a COC, but before award, the contracting officer may reconsider his or her initial responsibility determination. Goshen Excavators, B-279093.2, Apr. 20, 1998, 98-1 CPD ¶ 114 at 3; West State, Inc., B-255692, B-255693, Mar. 23, 1994, 94-1 CPD ¶ 211 at 4. On the other hand, where, after the SBA’s denial of a COC, no new information is presented to lead the contracting officer to determine that the concern is responsible, the contracting officer should proceed with award to another appropriately selected and responsible firm. Id.

Here, the contracting officer received the Northrop Grumman e-mail one day prior to SBA’s refusal to issue a COC determination. Because the e-mail was not relayed to, or considered by the SBA prior to its refusal to issue a COC, Orion contends that it constitutes new information probative of Orion’s responsibility. Orion argues that when the contracting officer received the SBA’s refusal to issue a COC on the basis that Orion lacked the required financial capability, the contracting officer should have recognized that the refusal was not consistent with the relevant facts, including “Northrop Grumman’s direct assurance to him that it would not let a contract awarded to Orion fail.” Orion Comments, at 6. According to Orion, the information in the e-mail should have caused the contracting officer to question the basis for the SBA’s refusal to issue a COC as well as his own initial non-responsibility determination.

The agency responds that the e-mail from Northrop Grumman was not new information probative of Orion’s responsibility, in that the e-mail did not include any information directly relevant or pertinent to the contracting officer’s negative responsibility determination, or the SBA’s refusal to issue a COC. Accordingly, the agency contends that the e-mail did not provide a basis for the contracting officer to reconsider the non-responsibility determination. The agency further contends that, contrary to Orion’s assertion, it would have been improper for the contracting officer to have reversed his initial non-responsibility determination on the basis of an unsolicited e-mail “pledge” that “Northrop Grumman would ‘not let Orion fail,’ in lieu of verification from the DCAA that the offeror has an adequate accounting system,” or evidence that Orion possessed the financial capability to perform the contract following the SBA’s refusal to issue a COC on that basis. Agency Comments, at 5.

We agree with the agency that the contracting officer acted reasonably in not revisiting his initial non-responsibility determination on the basis of the Northrop Grumman e-mail. The e-mail in question failed to provide any specific evidence rebutting the findings that Orion lacked an approved accounting system or the financial capability to perform the contract. The e-mail merely made a blanket assertion that Northrop Grumman “will not let Orion Technology fail,” without specific evidence to establish the existence of accounting, financial, or other support provided by Northrop Grumman, and without even establishing that the e-mail sender had authority to obligate Northrop Grumman to provide such assistance.

Under these circumstances, the e-mail message cannot be considered probative of Orion’s responsibility, and was properly disregarded by the contracting officer. See UAV Sys., Inc., B-255281, B-255281.2, Feb. 17, 1994, 94-1 CPD ¶ 121.  (Orion Technology, Inc., B-405970, Jan 13, 2012)  (pdf)

MANCON challenges the agency’s rejection of its proposal as unacceptable, arguing that since the RFP’s small business subcontracting plan evaluation factor was to be assessed on a pass/fail basis, the matter concerns the firm’s responsibility, and not the evaluation of its technical acceptability. Protest at 19-21. MANCON also contends that the agency unreasonably determined that the firm had not provided adequate assurance that its subcontractors would comply with all of the requirements of FAR § 19.704.

We agree with MANCON. Because the requirement for an acceptable small business subcontracting plan generally is applicable to the “apparently successful offeror,” this requirement relates to an offeror’s responsibility, even where the solicitation requests the offeror to submit its plan with its offer. See, e.g., General Dynamics-Ordnance & Tactical Sys., B-295987, B-295987.2, May 20, 2005, 2005 CPD ¶ 114 at 10; see also Southwest Mobile Sys. Corp., B-223940, Aug. 21, 1986, 86-2 CPD ¶ 213 at 2. In addition, while an agency may provide for the technical evaluation of responsibility-type factors, such as a small business subcontracting plan, it may only do so when it is making a comparative assessment of those plans. See Computer Sciences Corp.; Unisys Corp.; Northrop Grumman Info. Tech., Inc.; IBM Business Consulting Services-Federal, B-298494.2 et al., May 10, 2007, 2007 CPD ¶ 103 at 10. A comparative evaluation means that competing proposals will be rated on a scale relative to each other rather than on a pass/fail basis. Zolon Tech, Inc., B-299904.2, Sept. 18, 2007, 2007 CPD ¶ 183 at 8. Here, the plans were evaluated on a pass/fail basis, and therefore, the agency’s evaluation of those plans concern an offeror’s responsibility.

Responsibility is to be determined based upon information received by the agency up to the time award is proposed to be made. PMO Partnership Joint Venture, B-401973.3, B-401973.5, Jan. 14, 2010, 2010 CPD ¶ 29 at 5. The determination of a prospective contractor’s responsibility rests within the broad discretion of the contracting officer, who, in making that decision must rely upon his or her business judgment in exercising that discretion. We therefore generally will not question a negative determination of responsibility unless the determination lacked any reasonable basis. Id.; see also Torres Int’l, Inc., B-404940, May 31, 2011, 2011 CPD ¶ 114 at 4. A negative responsibility determination will not be found to be reasonable where it is based primarily on unreasonable or unsupported conclusions. PMO Partnership Joint Venture, supra., at 6.

Here, it appears that the agency’s insistence upon the use of the exact wording concerning the provision of DUNS numbers and addresses so that its subcontractors can properly report certain information puts undue emphasis on form over substance. The record nowhere indicates that MANCON did not intend to comply with these sections. Rather, MANCON’s revised submission assures the agency that its first-tier subcontractors will comply with all of FAR § 19.704(a)(10), confirms that the subcontractors will report their small business sales in eSRS and confirms that summary reports will be provided once eSRS reporting has been completed. See MANCON Revised Volume IV at 8. Other than stating that MANCON failed to parrot the exact language of section 19.704(a)(10) of the FAR, see Navy Response to Comments at 2, the Navy does not explain why MANCON’S assurances were inadequate.

We also believe that the agency erred in its belief that further exchanges with MANCON concerning its subcontracting plan would constitute discussions. We have found that where acceptability of a small business subcontracting plan is a responsibility issue, exchanges between the agency and an offeror concerning such plans are not discussions. General Dynamics-Ordnance & Tactical Sys., supra. To the extent that the contracting officer believed the agency needed additional assurances from MANCON, these communications would not have constituted discussions requiring the reopening of discussions with all offerors. Therefore, the contracting officer’s refusal to have further communication with MANCON was based primarily upon the unreasonable and unsupported conclusion that such an exchange would constitute discussions.  (MANCON, B-405663, Feb 9, 2012)  (pdf)

ADS argues that the Army failed to reasonably evaluate ASP's responsibility because, the protester contends, the awardee intends to subcontract with, and is otherwise affiliated with, three firms proposed for debarment: GEC, SES, and SCL. As discussed below, we find no merit to the protester's arguments.

Agencies may not award contracts to contractors that are debarred, suspended, or proposed for debarment, nor may they award contracts to firms that are affiliated with firms that are debarred, suspended, or proposed for debarment. FAR sections 9.403, 9.405. Additionally, agencies may not consent to a subcontract with a firm that is debarred or proposed for debarment, unless the agency head states in writing the compelling reasons for this approval action. FAR sect. 9.405-2.

Our Office views an agency's determination of whether an offeror is affiliated with or is subcontracting to, a firm that is debarred, suspended or proposed for debarment to be matters of offeror responsibility. See Bilfinger Berger AG Sede Secondaria Italiana, B-402496, May 13, 2010, 2010 CPD para. 125 at 3-5; Hunt Pan Am Aviation, Inc., B-246092.3, Apr. 8, 1992, 92-1 CPD para. 351 at 5; U.S. Constructors, Inc., B-248757, Aug. 31, 1992, 92-2 CPD para. 146 at 2. As a general matter, our Office does not review a CO's affirmative determination of responsibility. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2011); Navistar Defense, LLC; BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD para. 258 at 20. We will, however, consider a challenge to a CO's affirmative determination of responsibility where it is alleged that definitive responsibility criteria in the solicitation were not met, or where the protester identifies evidence raising serious concerns that, in reaching the responsibility determination, the CO unreasonably failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. sect. 21.5(c); T.F. Boyle Transp., Inc., B-310708, B-310708.2, Jan. 29, 2008, 2008 CPD para. 52 at 5.

Here, we conclude that the protest is within our jurisdiction to consider because ADS has argued that the CO unreasonably failed to consider available relevant information regarding ASP's relationships with firms proposed for debarment.

Subcontracting with Firms Proposed for Debarment

With respect to the merits of ADS's contentions that the Army failed to consider available relevant information regarding ASP's possible use of the resources and personnel of the three firms, we note first that this solicitation did not require offerors to submit subcontracting plans, and ASP did not provide this information. CO Statement at 1-2. Thus, we think the CO had no reason to know, prior to making her pre-award responsibility determination, whether ADS intended to subcontract with firms proposed for debarment.

Nonetheless, in response to allegations raised by ADS prior to filing its protest with our Office, the CO obtained from ASP a list of all of its proposed subcontractors, and was able to verify that none of them were debarred or proposed for debarment. While ASP acknowledged that it had planned to purchase certain assets to be used in performing this contract from GEC--which was proposed for debarment--during that firm's bankruptcy proceeding, the CO reasonably concluded that ASP would not be subcontracting with a debarred firm to perform this contract. Thus, this protest ground provides no basis to challenge the agency's determination that ASP was responsible.

Affiliation with Firms Proposed for Debarment

ADS also argues that ASP is affiliated with the three firms proposed for debarment, and is therefore ineligible for award. Specifically, the protester contends that the awardee is a new company "formed by officers and high-ranking employees" of GEC, SES, and SCL. Protest at 9. The protester's arguments concerning ASP's alleged affiliation with the three firms proposed for debarment were first brought to the agency's attention after award, and there is no evidence that the CO considered this matter as part of her pre-award responsibility determination. See AR at 10; CO Statement at 2. The protester thus contends that the responsibility determination was flawed because the CO did not consider whether the firms were affiliated.

The Army contends that this argument lacks merit because the Small Business Administration (SBA) has determined that ASP is not affiliated with these firms, in connection with a size-status protest. As relevant here, on February 25, the Small Business Administration issued a decision concerning a size-status protest filed by ACD challenging the award of a different contract to ASP for lease of shower and sink trailers at Fort Irwin. AR, Tab 12, SBA Size Determination No. 11-03-NTC-12A, at 1. The size protest, filed on January 11, argued that ASP was not a small business due to affiliations with GEC, SES, and SCL. Id. at 2. The SBA acknowledged that individuals who control ASP had "ties" to the three firms, and in some cases those ties were described as "close." Id. at 5-7. The SBA concluded, however, that ASP was not affiliated with any of these firms for purposes of determining its size status under the standards set forth in 13 C.F.R. sect. 121.103, and that ASP was therefore a small business for purposes of the award of the contract. Id. at 7.

Because the analysis of a firm's affiliation for purposes of debarment under FAR subpart 9.4 addresses the same considerations as the SBA's affiliation analysis under the SBA's size status regulations, we think that the SBA's ruling here supports the agency's affirmative responsibility determination, even though the CO did not review this matter at the time of award. See Atchison Eng'g Co., B‑208148.5, Aug. 30, 1983, 83-2 CPD para. 278 at 6. In this regard, the FAR states that firms are affiliates of each other for purposes of debarment if "directly or indirectly, (1) either one controls or has the power to control the other, or (2) a third party controls or has the power to control both." FAR sect. 9.403. Similarly, the SBA regulations concerning affiliation for purposes of determining a firm's size state that firms are affiliates "when one controls or has the power to control the other, or a third party or parties controls or has the power to control both." 13 C.F.R. sect. 121.103(a)(1). Indicia of control common to both regulatory provisions, and addressed by the SBA in its decision, include common management, ownership, key employees. See FAR sect. 9.403; 13 C.F.R. sect. 121.103; AR, Tab 12, SBA Size Determination No. 11-03-NTC-12A, at 5-7. Thus, the record provides no basis to find that ASP was affiliated with firms that were proposed for debarment.

In sum, we find no basis to question the agency's determination that ASP was responsible.  (Active Deployment Systems, Inc., B-404875, May 25, 2011)  (pdf)

ERKA raises a number of challenges to the agency's evaluation, source selection decision, and determination that ERKA was not responsible. Because, as described below, we find reasonable the agency's negative determination of ERKA's responsibility, we need only address that determination.

The protester complains that the CO's negative determination of ERKA's responsibility ignored the firm's positive performance history on projects in Romania, Iraq, and Africa. See Comments at 27-28. The protester also argues that it was improper for the agency to consider the default termination of the Eagle Family Housing contract because the matter is currently under appeal to the ASBCA. See id. at 26-27. Moreover, the protester asserts that it should not be held accountable for this contract, because it was only a junior member of the joint venture holding that contract. Protest at 15. ERKA also disputes the agency's interpretation of the D&B report that showed that ERKA had a history of making slow payments.

The agency responds that it performed a detailed, documented responsibility analysis consistent with the FAR and considered all the information regarding ERKA that was available to the agency. AR, Tab 2, at 28-30. The agency asserts that there was uncertainty as to whether ERKA could comply with the current delivery schedule based on prior problems with timeliness and its negative performance on several relevant projects, including the termination for default. The agency states that ERKA's projects in Africa, Iraq, and Romania were of little relevance or predated the default termination. The agency also complains that ERKA was offered several opportunities to mitigate risks associated with its past performance record, but that the protester only blamed its joint venture partner and offered excuses for its performance problems. Id.; CO's Statement at 18-19.

In making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. See International Paint USA, Inc., B-240180, Oct. 30, 1990, 90-2 CPD para. 349 at 3. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. Colonial Press Int'l, Inc., B-403632, Oct. 18, 2010, 2010 CPD para. 247 at 2. Our review is based on the information available to the contracting officer at the time the determination was made. Acquest Dev. LLC, B-287439, June 6, 2001, 2001 CPD para. 101 at 3.

Here, we find that the CO's negative determination of ERKA's responsibility was reasonable. The contemporaneous record evidences the CO's consideration of all ERKA's past performance and supports her determination that ERKA had performance problems under at least four construction contracts for requirements that were similar to those solicited here. With respect to the Eagle Family Housing contract that was terminated for default, for example, the contractor's performance was found unsatisfactory with regard to quality control, timeliness, cooperation and responsiveness, resource management, jobsite supervision, non-payment of subcontractors, site cleanup, and compliance with safety standards. See, e.g., Tab 25, Final Performance Evaluation, Eagle Family Housing Contract, at 2248-53. The record also shows that with respect to other contracts ERKA was issued numerous non-compliance reports. See id., Tab 20, ERKA Past Performance Information, at 2161-2200 (Fire Training Facility Contract); id. at 2156-57, 2201‑02, 13‑27 (Pavement ID/IQ Contract; Family Housing Electrical Substation Contract).

As described above, the protester had several opportunities to address its performance of the defaulted contract or to explain what efforts the firm would take to mitigate future performance risks. ERKA's responses to the agency's discussions, however, neither demonstrate why it should not be held responsible for the default termination nor provide any statement as to how the firm would mitigate future performance risk to the agency. See id., Tab 14A, First Discussions at 3 and Tab 14B, Second Discussions at 3. To the extent that the protester contends that its positive performance on other projects should have outweighed the negative past performance presented by the defaulted contract and other contracts, this disagreement does not demonstrate that the CO's judgment with respect to the firm's past performance was unreasonable.

With respect to the CO's consideration of the Eagle Family Housing contract, we disagree with the protester that the agency could not properly consider this termination in its responsibility determination because the matter has been appealed to the ASBCA. See MCI Constructors, Inc., B‑240655, Nov. 27, 1990, 90-2 CPD para. 431 at 4. An agency may properly rely upon its reasonable perception of a contractor's inadequate performance even where the contractor disputes the agency's position. See MAC's Gen. Contractor, B-276755, July 24, 1997, 97-2 CPD para. 29 at 3-4.

We also disagree with ERKA that the agency could not consider the protester's performance as a joint venture partner of the Eagle Family Housing contract. See MCI Constructors, supra, at 5 (reasonable for agency to give significant consideration to affiliate's prior performance in assessing contractor's responsibility); Bluff Springs Paper Co., Ltd./R.D. Thompson Paper Prod. Co., Inc. Joint Venture, B-286797.3, Aug. 13, 2001, 2001 CPD para. 160 at 3 (agency generally may consider an individual venturer's performance in assessing joint venture's past performance). In this regard, the record does not support ERKA's assertion that it was only a junior venture partner. Rather, the firm's joint venture agreement for this project shows that ERKA was a 50 percent partner at the time of contract award. See AR, Tab 19, Joint Venture Agreement, at 1-4.

In sum, the record supports the reasonableness of the CO's determination that ERKA was not responsible. Because ERKA was reasonably determined to be nonresponsible, we need not address its remaining protest issues.  (M. Erdal Kamisli Co. Ltd. (ERKA Co., Ltd.), B-403909.2; B-403909.4, February 14, 2011)  (pdf)

BBSSI generally challenges the contracting officer's negative responsibility determination. It specifically asserts that the determination was unreasonable, since it advised the agency that it would perform the contract without any involvement of BBH. Protest at 11-12. Further, the protester asserts that the Cosmelli opinion, as interpreted by the contracting officer, could not form the basis for a reasonable nonresponsibility determination. Supp. Protest, Mar. 12, 2010. BBSSI also asserts that the SOA requirement was a definitive responsibility criterion, which it satisfied. Protest at 9‑13. Finally, the protester asserts that the contracting officer's determination constituted a wrongful de facto debarment. Protest at 19-20.

In making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. Miklin Corp., B‑236746.2, Jan. 19, 1990, 90-1 CPD para. 72 at 1-2, recon. den., B-236746.3, June 8, 1990, 90-1 CPD para. 540; see, e.g., Blocacor, LDA, B-282122.3, Aug. 2, 1999, 99-2 CPD para. 25. Our review is based on the information available to the contracting officer at the time the determination was made. Acquest Dev. LLC, B-287439, June 6, 2001, 2001 CPD para. 101 at 3.

Here, as indicated above, based on the information available to him, the contracting officer concluded that BBSSI had provided indications that it may have been "a mechanism for [BBH] to submit proposals and to continue to contract with the U.S. Government." SSDD at 001133. In support of this conclusion, the agency supplies a statement by the head of its contract administration office, who states that "the same personnel have simultaneously represented [BBSSI and BBH] on the contracts we have administered there both prior to and during the period in which BBH has been debarred," and that there has been "no differentiation between the operations, insofar as the same key personnel have been identified and have signed documents for contracts with both companies." AR exh. 15a, Declaration of William Thievon, Mar. 4, 2010; see AR exh. 15d (organizational chart showing identical Bilfinger representatives on BBSSI and BBH contracts). The agency asserts that the two firms utilized common facilities and equipment, common and shared employees, including key personnel and management, and common bank accounts and that this resulted in the lack of a practical differentiation between either company in their daily work. AR at 7, 18.

The protester generally does not dispute the information on which the agency based its determination. Rather, it asserts that the information is irrelevant, since it does not "invalidate the very clear and explicit representation in BBSSI's discussion response, whereby it was unequivocally represented that BBSSI would perform on this [contract] without any involvement of BBH." Comments at 25 (emphasis in original).

We find that the extensive information on which the contracting officer relied fully supported the view that BBSSI and BBH were closely related, and the resultant appearance that BBH, a debarred contractor, would be involved in performing the contract, as it had been under prior contracts. Debarred contractors generally may not receive contracts from the government or subcontracts from government contractors, and "are also excluded from conducting business with the Government as agents or representatives of other contractors." FAR sect. 9.405. Further, the FAR prohibits debarred firms from submitting offers for government contracts either directly or "indirectly (e.g., through an affiliate)." FAR sect. 9.403 (definition of "contractor") and sect. 9.405(a) ("contractors" debarred, suspended, or proposed for debarment are excluded from receiving contracts); Detek, Inc., B‑261678, Oct. 16, 1995, 95-2 CPD para. 177 (firm not eligible for award where circumstances indicated that debarred affiliate was attempting to submit offer through affiliated offeror). While BBSSI represented that BBH would not participate in performance, the contracting officer was not required to take BBSSI's representations at face value; he reasonably could rely on the historical and other information evidencing a close working relationship between BBSSI and BBH in concluding that BBH essentially was proposing through BBSSI, and that BBSSI therefore was nonresponsible.

We also find that the contracting officer's concerns about BBSSI's reliance on BBH's SOA was reasonable. SSDD at 001133-34. Based on the Cosmelli opinion, the contracting officer found that BBSSI's use of BBH's SOA further supported the conclusion that BBH would be involved in contract performance and was essentially offering on the solicitation through BBSSI. Id. The protester asserts that its use of BBH's SOA was "simply for the sake of satisfying the ministerial requirement of having a SOA certificate," Protest at 11-12; AR at 3, and reiterates that it intended to perform the contract wholly by itself, without participation by BBH. Again, however, the agency was not bound to accept BBSSI's representations and disregard its SOA arrangement with BBH, together with the other substantial information bearing on the firms' relationship.

The protester asserts that the legal opinion reviewed by the agency could not form the basis for a reasonable nonresponsibility determination due to deficiencies in the agency's acquisition of the opinion, the opinion itself, and the contracting officer's interpretation of the opinion. Comments at 4-21; Supp. Protest, Mar. 12, 2010. In this regard, the protester asserts that the Request for Quotations seeking the legal opinion did not provide sufficient background material, including information setting forth BBSSI's views regarding the legal effect of the SOA. Comments at 4-9, 18-21. We do not agree with BBSSI, however, that the absence of its views from the RFQ diminished the reliability of the opinion.[1] The RFQ adequately described the subject matter the opinion was to address, and there was no requirement that the agency turn the opinion into a vehicle for debate by setting forth BBSSI's views on the matter. Contracting officers generally are entitled to rely on information available to them at the time of a responsibility determination, absent any indication that the information is defective, unsupported, or suspect. M. Matt Durand, LLC, B-401793, Nov. 23, 2009, 2009 CPD para. 241 at 7.

BBSSI also asserts that the agency misinterpreted the legal opinion and that the opinion does not support the contracting officer's conclusions. Comments at 9-11, 15-19. However, BBSSI has not established that the agency's interpretation of the opinion was incorrect or unreasonable. The opinion comments on the law surrounding an SOA, rather than the precise question of one firm's use of another firm's SOA. However, the opinion does indicate that, under the SOA system, a contractor may "prove to have the technical capabilities and the economic and financial standing necessary" to compete for the award of a public contract "by relying on the resources … of other entities, provided that, in such case, the bidder can prove to the contracting authority that it will have in its disposal the resources of such other entities to carry out the works." Cosmelli Opinion at 3-4. The opinion also indicates that "the bidder who intends to avail itself of the third party's resources shall produce … a declaration certifying that it intends to avail itself of the third party's resources in order to meet the necessary requirements … ." Id. at 5. These statements are all reasonably supportive of the contracting officer's conclusion that BBSSI's reliance on BBH's SOA was indicative of an intent to "have at its disposal the resources of [BBH] to carry out the [contract]." SSDD at 001134. The protester has provided no definitive information, other than its own legal opinion, establishing that the law permits it to use another firm's SOA without involving that other firm in performance of the contract.

BBSSI also asserts that the SOA requirement was a definitive responsibility criterion, which it satisfied when it submitted BBH's SOA, and that further examination of the SOA is unwarranted and an improper application of an unstated evaluation factor. Protest at 9-13. This argument is without merit. BBSSI was not found nonresponsible due to failure to meet the solicitation requirement for submission of an SOA; rather, it was found nonresponsible based on the circumstances discussed above and its submission of BBH's SOA. FAR part 9.4.

Finally, the protester asserts that the contracting officer's negative responsibility determination constituted a wrongful de facto debarment, without affording BBSSI the procedural protections of FAR sect. 9.406-1(b). This argument is without merit. A de facto debarment occurs when the government uses nonresponsibility determinations as a means of excluding a firm from government contracting or subcontracting, rather than following the debarment regulations and procedures set forth at FAR subpart 9.4. Firm Erich Bernion GmbH, B-233106, Dec. 28, 1988, 88‑2 CPD para. 632 at 4. A necessary element of a de facto debarment is that an agency intends not to do business with the firm in the future. Id.; Lida Credit Agency, B‑239270, Aug. 6, 1990, 90-2 CPD para. 112 at 3 n.2. The nonresponsibility determination here was based on current information regarding BBSSI and BBH's close business relationship, and BBSSI's use of BBH's SOA. The record does not show that the agency intends to exclude the firm from other procurements based on its specific determination here.  (Bilfinger Berger AG Sede Secondaria Italiana, B-402496, May 13, 2010)  (pdf)

LP challenges the agency’s determination that its proposal was technically unacceptable. The protester also argues that the agency treated the two offerors unequally by conducting a thorough investigation of its manufacturing subcontractor’s facilities, while failing to visit EFI’s production facility.

At the outset, we note that where an agency determines the proposal of a small business such as the protester 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 Small Business Administration (SBA), which has the ultimate authority to determine the responsibility of small business concerns, is required. Joanell Labs., Inc.; Nu‑Way Mfg. Co., Inc., B-242415.8 et al., Apr. 15, 1992, 92-1 CPD para. 369 at 6; Sanford and Sons Co., B-231607, Sept. 20, 1988, 88-2 CPD para. 266 at 2-3. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility as well as responsibility-related ones, referral to the SBA is not required, however. Paragon Dynamics, Inc., B-251280, Mar. 19, 1993, 93-1 CPD para. 248 at 4.

Here, while it is clear from the record that the agency determination of technical unacceptability was based in large part on concerns pertaining to the manufacturing capabilities of the protester’s proposed subcontractor, which are responsibility-related, it is also apparent that those concerns were not the only basis for the determination of technical unacceptability; as a consequence, we conclude that the determination of technical unacceptability was not essentially one of nonresponsibility requiring referral to the SBA. In particular, LP’s final proposal failed to demonstrate compliance with the RFP requirement that the dimensions of the proposed luminaires not exceed the dimensions of the legacy fixtures. While the protester furnished an acceptable response to the agency discussion letter notifying it that four of its proposed luminaires exceeded the allowable dimensions, LP did not incorporate this response into its final revised proposal; rather, LP’s final proposal repeated the information contained in its initial proposal. Given that LP’s final proposal did not demonstrate compliance with the solicitation requirement pertaining to fixture dimensions, we think that the evaluators reasonably determined it technically unacceptable under the design and performance subfactor. See Capitol CREAG LLC, B-294958.4, Jan. 31, 2005, 2005 CPD para. 31 at 7-8.

We also think that the evaluators had a reasonable basis for determining the protester’s proposal unacceptable under the logistic support subfactor. The solicitation provided for the evaluation of the offeror’s ability to furnish repair and replacement parts under this subfactor. In its initial proposal, LP furnished the following information regarding its capability to provide replacement parts:

Hubbell has agreed to release spare parts which would include LED boards, LED Ballasts, Fluorescent Ballasts, Lids, Latches and screws through electrical distribution in key strategic NAVY based areas around the United States.

LP Initial Proposal at 80. In its initial evaluation, the evaluation team found this response to be acceptable. During discussions, however, LP replaced Hubbell as its manufacturing subcontractor, without making any corresponding revisions to its approach to furnishing replacement parts. That is, LP’s final proposal still identified Hubbell as the source for its spare parts. We think that the evaluators reasonably determined unacceptable the protester’s proposed approach of relying upon Hubbell as its source for spare parts for fixtures that Hubbell was not manufacturing.

Turning then to the protester’s complaint that the agency treated the two offerors unequally by conducting a site visit to its manufacturing subcontractor’s facilities, but failing to inspect EFI’s production facilities, the agency explains that it had concerns regarding the protester’s, but not EFI’s, production capabilities. To the extent that the protester argues that the agency should have had concerns regarding EFI’s production capabilities, it is essentially challenging the agency’s affirmative determination of EFI’s responsibility, and absent conditions not present here, we will not consider a protest challenging such a determination. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2009).  (Light-Pod, Inc., B-401739; B-401739.2, November 12, 2009) (pdf)

ESCO protests the reasonableness of the cash-flow assessment that the Navy performed to determine ISL’s financial ability to perform at the proposed price of $.06. Specifically, the protester argues that the Navy’s cash-flow analysis was improperly premised on the assumption that ISL would generally work on only one ship at a time (and thereby incur the estimated upfront costs of performance sequentially), although ISL’s own proposed schedule stated otherwise. ESCO also argues that the Navy’s cash-flow analysis was improperly computed, thereby underestimating the total upfront costs that ISL was likely to incur in advance of any scrap sale proceeds. Since the total upfront costs that ISL would incur were substantially higher than the offeror’s documented line of credit, ESCO argues, the Navy’s determination that ISL possessed the financial ability to perform the task order at the price proposed was materially flawed.

The record shows that the Navy evaluators recognized both the substantial price disparity between the ISL and ESCO proposals, and that ISL would not be receiving any significant payment from the agency as part of performance of the awarded task order (i.e., task order payments could not finance the offeror’s performance). In light thereof, in order to ensure that ISL was “financially responsible at the price [it] proposed,” AR, Tab 13, Evaluation Report, at 15, the Navy evaluators decided to conduct a cash-flow analysis of ISL and determine whether the offeror possessed sufficient financial resources to cover the total estimated upfront costs of towing and dismantling the ships in advance of any returns on scrap sale.

The Navy’s cash-flow assessment of ISL was based on information that the agency possessed regarding the dismantling of a similarly sized ship, the ex-Camden. The evaluators assumed that the contractor would incur 10 percent of total dismantling costs, as well as the estimated towing costs, before it would begin to realize any cash inflow from scrap. The evaluators then made the following calculations:
 

Id.

After completing this computation, the Navy found ISL to be financially responsible at the price proposed. Specifically, the evaluators concluded, “The contractor stated that they were free of debt and has an unused and revolving credit line of $[DELETED]. Whereas, their proposed schedule plans staggered start dates for each ship, this should be sufficient to cover expenses.” Id.

The Navy’s determination that ISL’s financial resources were sufficient to meet estimated total upfront costs was premised on the assumption that ISL would incur the estimated upfront costs sequentially (i.e., that ISL’s staggered start dates for each ship would result in the estimated upfront costs for each ship not occurring simultaneously). Contrary to the agency’s assumption, however, ISL’s proposal included a work schedule indicating that the three ships essentially would be towed and dismantled simultaneously: the towing and dismantling of the ex-Saipan was to occur from May 6, 2009, to July 7, 2010; the towing the dismantling of the ex-Austin was to occur from June 3, 2009, to April 21, 2010; and the towing and dismantling of the ex-Fort Fisher was to occur from June 3, 2009, to July 7, 2010. AR, Tab 7, ISL Proposal, exh. 1, 3-Ship Work Schedule. Moreover, ISL’s schedule indicated that the towing of all three ships would occur before the point in time at which the Navy estimated that ISL would begin to realize returns on the sales of scrap from any ship.[5] Id. As computed by the Navy, the upfront costs for all three ships total $3,037,300, substantially higher than ISL’s $[DELETED] line of credit.

Further, in computing the dismantling costs that ISL would incur before realizing the sale of any scrap, the Navy utilized an average dismantling cost of $126 per ton. This figure was apparently derived by dividing the dismantling costs for the ex-Camden by its tonnage ($2,611,617 / 20,717 = $126).[6] ESCO Comments, July 10, 2009, exh. 2, ex-Camden Cost Report Summary, at 1. In fact, the $2,611,617 figure represented only the direct dismantling costs for the ex-Camden, and did not include the contractor’s costs for hazardous waste services, overhead, and general and administrative (G&A) expenses. Id.; Contracting Officer’s Statement, Aug. 28, 2009, at 3. (The agency does not dispute that ISL’s dismantling work for the three ships here would also include costs for hazardous waste services, overhead, and G&A expenses.) As the total dismantling costs for the ex-Camden were actually $5,240,792, ESCO Comments, July 10, 2009, exh. 2, ex-Camden Cost Report Summary, at 1, the average cost is $252 per ton ($5,240,792 / 20,717 = $252). Using this per ton figure, the upfront dismantling costs computed by the Navy as part of ISL’s cash-flow assessment were understated by a total of $567,980, thereby resulting in an adjusted total estimated upfront cost for all three ships of $3,605,280.

The record shows that the Navy’s decision to perform a cash-flow assessment was done “to ensure that ISL [was] financially responsible at the price they proposed.”[7] AR, Tab 13, Agency Evaluation Report, at 14. Responsibility is a contract formation term that refers to the ability of a prospective contractor to perform the contract for which it has submitted an offer; by law, a contracting officer must determine that an offeror is responsible before awarding it a contract. See 41 U.S.C. sect. 253b(c), (d); FAR sect. 9.103(a), (b); Advanced Tech. Sys., Inc., B-296493.6, Oct. 6, 2006, 2006 CPD para. 151 at 5. Consistent with this statutory and regulatory framework, once an offeror is determined to be responsible and is awarded a contract, there is no requirement that an agency make additional responsibility determinations during contract performance. Advanced Tech. Sys., Inc., supra. While there likewise exists no requirement that an agency conduct an additional responsibility determination when placing a task order under an ID/IQ contract, see FAR sect. 16.505, neither is an agency precluded from doing so, as the Navy chose to do here.

Since the determination of whether a particular contractor is responsible is largely a matter within the contracting officer’s discretion, our Office, as a general matter, will not consider a protest challenging an affirmative determination of responsibility, except under limited, specified circumstances--where it is alleged that definitive responsibility criteria in the solicitation were not met or evidence is identified that raises serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. sect. 21.5(c); Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD para. 19 at 13-14. This includes protests where, for example, the protester offers specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Greenleaf Constr. Co., Inc., supra, at 14 (contracting officer ignored known information and instead based his determination of the awardee’s financial responsibility on information known to be inaccurate); Southwestern Bell Tel. Co., B-292476, Oct. 1, 2003, 2003 CPD para. 177 at 8-10 (contracting officer failed to consider serious, credible information regarding awardee’s record of integrity and business ethics in making his responsibility determination). We think the circumstances here warrant our review of the reasonableness of agency’s responsibility determination regarding ISL.

As set forth above, the Navy’s determination that ISL had sufficient financial resources to cover estimated upfront costs for all three ships was premised on the assumption that ISL would incur the estimated upfront costs sequentially (i.e., that ISL’s staggered start dates for each ship would result in the estimated upfront costs for each ship not occurring simultaneously). In making this assumption, the Navy ignored the information in ISL’s own proposal which clearly indicated that the offeror planned to tow and dismantle the three ships simultaneously, and would thereby incur the estimated upfront costs for each ship largely simultaneously. This erroneous assumption was key to the contracting officer’s affirmative responsibility determination. When it is corrected to account for ISL’s plan to service the ships simultaneously, it appears from the record that, using the Navy’s own method of calculation, ISL does not in fact have adequate financial resources to cover the estimated upfront costs of all three ships simultaneously. For example, ISL’s schedule indicates that the firm plans to tow all three ships before the point in time at which the Navy estimated that ISL would begin to realize returns on the sales of scrap from any ship. The towing expenses estimated by the Navy alone total $2,469,280, substantially more than the financial resources that the agency’s analysis deemed available to cover the estimated upfront costs (a $[DELETED] line of credit). In addition, the Navy’s analysis underestimated by half the upfront dismantling costs that ISL would occur for each ship. When corrected, at the point in time at which the Navy estimated that ISL would first begin to realize returns on the sales of scrap, the contractor would have total upfront costs of approximately $3,153,838--towing costs of $2,469,280 plus $684,558 in upfront dismantling costs for the ex-Saipan.

Subsequent to the filing of the ESCO protest, the Navy presented additional, new information that purportedly supports its financial responsibility determination of ISL--for example, that ISL would realize profits from its recent completion of another ship-dismantling contract. Contracting Officer’s Statement, Aug. 28, 2009, at 3. The record clearly reflects that the agency did not consider this information in its evaluation of ISL’s financial responsibility. To the extent the Navy now asserts that its conclusion regarding ISL’s financial responsibility should be based on this information, we give this post hoc justification little weight. See Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.

In sum, we conclude that by ignoring what ISL actually proposed and instead basing his determination of financial responsibility on information contradictory to what the offeror has proposed, the contracting officer unreasonably failed to consider available relevant information and ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. As a result, we sustain the challenge to the affirmative responsibility determination.  (ESCO Marine, Inc., B-401438, September 4, 2009)  (pdf)

The Navy found that GDMA had not demonstrated that it would satisfy the licensing requirement for doing business in the Northern Mariana Islands and rejected GDMA's quotation. Award was made to Ambyth, and this protest followed.

GDMA contends that the Navy improperly rejected the firm's quotation where GDMA had relied upon the Navy's previous assurances that its business arrangement with [DELETED] would satisfy the licensing requirement. In this regard, GDMA argues that "a bidder is entitled to rely on interpretations provided by Government officials who lead the bidder to reasonably regard what they say as being authoritative." Comments at 9, citing, North Coast Elec. Co.--Recon., B-202208, Nov. 4, 1981, 81-2 CPD para. 382 at 4 GDMA argues that the Navy should have either amended the solicitation to notify offerors that the Navy's interpretation of the business license requirement had changed, or provided GDMA with an opportunity to modify its quotation.

We do not agree with GDMA that this protest concerns the agency's interpretation, or a change in its interpretation, of the solicitation. Here, the RFQ unambiguously required firms to satisfy licensing requirements to conduct business in the Northern Mariana Islands, see RFQ at 26‑27, and GDMA does not dispute that it is required to satisfy the business licensing requirements of the Northern Mariana Islands. Rather, GDMA's complaint concerns the application of this unambiguous requirement to GDMA's quoted relationship with [DELETED]. Although the Navy initially believed that GDMA's proposed business arrangement would satisfy the licensing requirement, the Navy did not--contrary to the protester's arguments--subsequently change its interpretation of the solicitation's requirement, rather it simply learned that GDMA's quoted business relationship was not acceptable to the government of the Northern Mariana Islands.

From our review of the record, we find reasonable the agency's rejection of GDMA's quotation where the agency was informed by an official of the Northern Mariana Islands that the firm's quoted business relationship would not satisfy the Island's business licensing requirements, and where GDMA did not otherwise show that the firm would satisfy the licensing requirements. Although the protester contends that the official in the Liaison Office of the Northern Mariana Islands, who rendered the judgment that GDMA's quoted business arrangement would not be acceptable, was not a lawyer or qualified to provide such an opinion, that official heads an office that, as noted above, is "the single point of contact and clearinghouse on all matters relative to the U.S. Military and Veterans Affairs in the [Northern Mariana Islands]." We find no merit to GDMA's argument that the Navy could not reasonably rely upon this judgment. Moreover, the record shows that, before rejecting the firm's quotation, the Navy informed GDMA that the Northern Mariana Islands did not accept the firm's quoted business relationship with [DELETED] and provided GDMA with a an opportunity to "fix" its quoted relationship to satisfy the licensing requirements.

We also do not agree with GDMA's apparent belief that the firm could simply rely upon the Navy's assurances that GDMA's quoted business relationship with [DELETED] would satisfy the licensing requirements of the Northern Mariana Islands. Whether or not the contractor satisfies the Island's business licensing requirements is a matter to be decided by the Northern Mariana Islands, and not ultimately by the Navy. Here, the Northern Mariana Islands, through its Liaison Office, stated that GDMA's quoted business relationship with [DELETED], as GDMA's agent, would not satisfy the Island's licensing requirements. Our authority to review the reasonableness of the Navy's reliance upon that judgment does not include reviewing the reasonableness of the judgment of the Northern Mariana Islands.  (Glenn Defense Marine-Asia PTE, Ltd., B-401480, August 17, 2009)  (pdf)

As noted above, the contracting officer rejected Melbourne’s offer on the ground that it was “nonresponsive” to the SFO requirements. Notwithstanding the contracting officer’s characterization, the requirement at issue concerns the offeror’s responsibility, not the technical acceptability of its offer. In this regard, as indicated by the heading under which the requirement was listed--“Evidence of Capability to Perform,” SFO para. 3.16--the requirement concerns the offeror’s ability to perform the contract, rather than the acceptability of its offer. Acquest Dev. LLC, B-287439, June 6, 2001, 2001 CPD para. 101 at 5; Tomasz/Shidler Inv. Corp., B-250855, B-250855.2, Feb. 23, 1993, 93-1 CPD para. 170 at 6. An offeror who is found nonresponsible is not eligible for award. FAR sect. 9.103; Specialty Marine, Inc., B-292053, May 19, 2003, 2003 CPD para. 106 at 3. We will not question an agency’s nonresponsibility determination unless the record shows that it lacks a reasonable basis. Aulson & Sky Co., B‑290159, May 21, 2002, 2002 CPD para. 87 at 5.

Here, Melbourne argues that it was unreasonable for GSA to reject its offer for failing to include the required commitment of funds letter given that it had furnished a commitment of funds letter in connection with a concurrent GSA procurement handled by the same contracting officer for the lease of space for the Internal Revenue Service (IRS). The protester argues that GSA should have recognized based on its submission of the commitment of funds letter for the IRS procurement that it had the financial capability to perform the contract here.

We disagree. The SFO here required evidence of at least a conditional commitment of funds in an amount necessary to prepare the space solicited--thus, clearly, the letter of commitment needed to demonstrate the conditional availability of funds for this project. The letter that Melbourne furnished in connection with the IRS procurement did not demonstrate the availability of funds for the SSA project--rather, it specified that the bank had approved a $2 million loan to finance the IRS Melbourne project. Thus, given that the firm failed to furnish the evidence required by the SFO regarding commitment of funds for the project at issue, we see no basis to question the agency’s decision to reject Melbourne’s offer.  (Melbourne Commerce, LLC, B-400049.2, January 9, 2009) (pdf)

It is well established that licensing-type requirements are matters of responsibility, not responsiveness. Victory Van Corp.; Columbia Van Lines, Inc., B-180419, Apr. 8, 1974, 74-1 CPD para. 178 at 2. We have held that a solicitation requiring a bidder to obtain a specific license or permit concerns the bidder’s responsibility (i.e., its ability to perform), rather than bid responsiveness (i.e., its promise to perform). See Midwest Sec. Agency, Inc., B-222424, Apr. 7, 1986, 86-1 CPD para. 345 at 2 (evidence of having appropriate security guard licenses or of having applied for them is matter concerning responsibility); Carolina Waste Sys., Inc., B-215689.3, Jan. 7, 1985, 85‑1 CPD para. 22 at 2 (evidence of state certification of a waste disposal site is a matter of responsibility). Much like a license or permit, a solicitation term requiring submission of information to a responsible third-party agency (i.e., not the procuring agency) for approval prior to contract performance is also a matter of responsibility. See Astro-Med, Inc., B-232633, Dec. 22, 1988, 88-2 CPD para. 619 at 3 (solicitation requiring Food and Drug Administration approval to become a registered supplier of medical devices prior to performance pertains to responsibility). Here, by signing the DUA and including it in its bid submission to GPO, the bidder is merely indicating a readiness to apply for approval from CMS to use CMS data; approval itself can be given at any time prior to data disclosure. Thus, we find the DUA requirement goes only to the bidder’s ability to perform (i.e., the bidder’s responsibility) and that SourceLink should have been provided a reasonable opportunity to provide a completed DUA prior to award. Therefore, GPO’s rejection of SourceLink’s bid as nonresponsive was improper. (SourceLink Ohio, LLC, B-299258, March 12, 2007) (pdf)

GAO will not consider protests challenging affirmative determinations of responsibility except under limited, specified circumstances--where it is alleged that definitive responsibility criteria in the solicitation were not met or evidence is identified that raises serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2006); American Printing House for the Blind, Inc., B-298011, May 15, 2006, 2006 CPD para. 83 at 5-6; Government Contracts Consultants, B-294335, Sept. 22, 2004, 2004 CPD para. 202 at 2. This includes protests where, for example, the protest includes specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Universal Marine & Indus. Servs., Inc., B-292964, Dec. 23, 2003, 2004 CPD para. 7 at 2; Verestar Gov’t Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD para. 68 at 4. Here, Alutiiq has not alleged that definitive responsibility criteria were not met and, as detailed below, its only evidence that the contracting officer failed to consider available relevant evidence in determining the awardees responsible is the speculation that TW, Chenega SPS, and Doyon did not price their proposals independently. This is not, in our view, a proffer of evidence sufficient to raise serious concerns that the contracting officer ignored relevant information in making her responsibility determinations. The record indicates that the contracting officer inquired into Doyon’s and Santa Fe’s reliance on CIS and gave reasonable consideration to the information the protester contends she failed to review. See Triple H Servs., B-298248, B-298248.2, Aug. 1, 2006, 2006 CPD para. 115 at 3. Likewise, with respect to Chenega SPS and TW, the contracting officer reasonably considered the information the protester contends she failed to review; accordingly, there simply is no evidence showing that the contracting officer ignored the information on which the protester bases its challenge to the affirmative determinations of responsibility. Moreover, the facts relied on by the protester here--that Doyon and Santa Fe had a common subcontractor, and that Chenega SPS and Chenega IS (TW’s subcontractor) have common corporate ownership--do not constitute information that would be expected to have a strong bearing on whether the awardees should be found responsible, as required to trigger our review under 4 C.F.R. sect. 21.5(c). Universal Marine & Indus. Servs., Inc., supra; Verestar Gov’t Servs. Group, supra. In this regard, the requirement that competing concerns prepare their offers independently and without consultation with each other does not preclude competitors from proposing common subcontractors. McCombs Fleet Servs., B-278330, Jan. 16, 1998, 98-1 CPD para. 24 at 4; Ross Aviation, Inc., B-236952, Jan. 22, 1990, 90-1 CPD para. 83 at 2-3. Alutiiq has presented no evidence, beyond its mere speculation, that Doyon’s and Santa Fe’s reliance on CIS for various technical aspects of their proposals must have also resulted in the offerors exchanging price information, and we will not assume that this was the case. Ross Aviation, Inc., supra, at 3. Similarly, with respect to Chenega SPS and TW, it is important to note that there are two different Chenegas involved here--Chenega SPS, which was an offeror, and Chenega IS, which TW proposed as its subcontractor--that are “sister subsidiaries” of the same parent corporation, Chenega Corporation. The fact that two offerors, or an offeror and a second offeror’s subcontractor, have common corporate ownership is not by itself sufficient to establish that the offerors failed to price their proposals independently, and where, as here, a protester presents no other evidence, beyond mere speculation, showing that competitors did not arrive at their prices independently, we will not assume otherwise. See McCombs Fleet Servs., supra, at 4. (Alutiiq Global Solutions, B-299088; B-299088.2, February 6, 2007) (pdf)

The nonresponsibility determination here was reasonable. The record shows that, at the time the CO made her determination, Gray had performed late on 7 of 215 orders for the previous 3 months, for a 3 percent delinquency rate. While, as the protester notes, this is not a large number in absolute terms, the agency took a practical view of the delinquencies; it notes that, had the protester been performing the GAO contract during the previous year--in which there were 337 orders--its delinquency rate would have resulted in 11 late orders. Agency Report (AR), Tab 2, Denial of Agency-Level Protest, at 2. Moreover, the agency was concerned that Grays performance history demonstrated a recent upward trend in late deliveries. AR, Tab6, Findings and Determination. In this regard, of the recent late jobs, Gray was late on 2 of 70 jobs, or 3 percent, in July, 4 of 75 jobs, or 5 percent, in September, and 1 of 10 jobs, or 10 percent, for the first half of October. AR, Tab 5. Considering that GAO Bluebooks are time critical in nature, with an extremely tight schedule with a 2 to 3 day turnaround, the agency determined that Grays recent record of delinquencies brought its ability to timely perform all jobs under this contract into question. AR, Tab 6, Findings and Determination. We find no basis for objecting to this determination. Gray alleges that McDonalds delinquency rate was similar to its own, and concludes that the agency unfairly applied a different, more stringent standard in assessing Grays responsibility. This argument is without merit. While the awardee indeed had a recent record of delinquencies similar to Grays, the agency considered McDonalds perfect record of timely performance as the incumbent GAO Bluebook contractor to be more probative of its ability to perform the new contract than its performance of other, unrelated contracts. We find nothing unreasonable in the agenc'ys according determinative weight to McDonalds performance of the same requirement as that under the IFB. Neither did this constitute application of a different standard; rather, the different responsibility determinations resulted from the fact that the two firms were not similarly situated with regard to past performance.  (Gray Graphics Corporation, B-295421, February 18, 2005) (pdf)

As explained below, however, information regarding the awardees ability to obtain the license is not the type of information that would be expected to have a strong bearing on the awardees responsibility here, so that any contention that the agency failed to consider such information is not sufficient to trigger review by our Office of the agency's responsibility determination. As a general matter, under North Carolina law, a general contractors license is required for the construction of any building, highway, public utilities, grading or any improvement or structure, where the cost of the undertaking is thirty thousand dollars ($30,000) or more . . . N.C. Gen. Stat. 87-1 (2004). Here, the agency maintains that the RFP's requirements are primarily for facility maintenance services, not construction. Specifically, according to the agency, only one area out of the 21 areas described in the statement of work could potentially involve construction work. While Transcontinental asserts generally that the majority of the employees and the value of the work orders are primarily construction in nature, the protester does not explain how, or what part of, the work qualifies as construction under North Carolina law, Protesters Comments at 2-3, and the requirements, on their face, do not suggest that construction work will be required to any significant extent, if at all. In fact, the term construction is not used to describe any of the required services under the RFP; rather, virtually all of the requirements are described as repair, inspection, or maintenance activities. Responsibility ultimately concerns the contracting officers judgment as to a firms ability to perform the work and whether the firm has sufficient integrity for the government to rely on its representations and agreement to perform. See generally FAR subpart 9.1. Because the work under the RFP was not primarily for construction--rather, construction appears to be encompassed, if at all, under only one of the 21 requirements set forth in the RFP it is reasonable to regard the license requirement, as argued by the agency, as having little bearing on Call Henrys ability to perform the required work. As a result, the protesters contention that the agency failed to consider information regarding the awardees ability to obtain the license does not satisfy the threshold requirement for our review of the agency's responsibility determination under 4 C.F.R. 21.5(c). (Transcontinental Enterprises, Inc., B-294765, November 30, 2004) (pdf)

We find that the CO's negative determination of Daisung's responsibility was reasonable. The CO based his determination on the findings from the detailed, yearlong AAA and CID investigations, including, for example, sworn statements by the AAA auditors, dated February 10 and 18, 2004, interviews with Daisung repair shop personnel, dated May 13 and 14, 2003, an interview with the president of Daisung, affirmed by him as true on November 4, 2003, and photographs taken during the unscheduled visit to the Daisung facility. AR, Tab 5, Final CID Report, exhs. 8, 12, 14, and 2G. We have reviewed these documents, and find they contain information from which the CO reasonably could conclude that Daisung's conduct under its recent contract raises serious doubt as to the company's integrity. Specifically, as noted above, the investigators found that Daisung, among other things, did not properly renovate mattresses by inspecting and replacing worn filling with new filling, improperly switched mattress covers, and improperly billed at the higher price work performed on the lower-priced mattresses. Additionally, the record contains more than one statement by Daisung representatives confirming that Daisung employees replaced the blue-striped mattress covers with the more expensive flowered covers. AR, Tab 5, Final CID Report, exh. 2G, Interviews with Repair Shop Personnel, at 4, 9. For example, when one Daisung representative was asked what happened to the "old, blue and white striped mattresses that the units turn in," the auditors reported that he responded, "the mattress contractor takes and renovates them into the yellow-flowered kind ...." AR, Tab 5, Final CID Report, exh.2G, at 4. CID report information such as this properly may be used as the basis for a nonresponsibility determination, without the need for the contracting officer to conduct an independent investigation to substantiate the accuracy of the report. Energy Mgmt. Corp. , B-234727, July 12, 1989, 89-2 CPD 38 at 4; Becker and Schwindenhammer, GmbH , B-225396, Mar. 2, 1987, 87-1 CPD 235 at 4. The contracting officer's determination was reasonable given the information provided by AAA and CID. (Daisung Company, B-294142, August 20, 2004) (pdf)

Our Office generally will not consider a protest challenging an affirmative determination of responsibility, except under limited exceptions, because the determination that a particular contractor is capable of performing a contract is largely committed to the contracting officer’s (CO) discretion. 4 C.F.R. § 21.5(c) (2004). We recently revised our Regulations in this regard to add as a specified exception protests “that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the [CO] unreasonably failed to consider available relevant information or otherwise violated statute or regulation.” Id. We explained in the preamble to the revision that it was “intended to encompass protests where, for example, the protest includes specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. 67 Fed. Reg. 79,833, 79,834 (2002); see Verestar Gov’t Servs. Group, B‑291854, B-291854.2, Apr. 3, 2003, 2003 CPD ¶ 68 at 4. The record shows that the Corps was aware of most of the evidence about the connection between these companies by the time it decided to award to Compton. For example, the cover of the Corps’s preaward survey indicates that Mike Pence is Compton’s point of contact. In addition the survey indicates that Mike Pence was a co-founder and principal of Compton since its founding in 1992, and that for over 25 years he has been an officer of the Pence Company. Finally, the preaward survey recognized that principals of Compton were involved in other Corps construction projects, and the record shows that their involvement was while working for the Pence Company; in fact, the preaward survey drew favorable conclusions about the earlier involvement of Compton’s principals in these projects. AR, Tab 6, at 4. The record also shows that the Corps verified that Compton was listed on SBA’s website listing small businesses eligible to represent themselves as HUBZone concerns. Although the Corps might not have recognized that the telephone and fax numbers listed on the website were Mr. Compton’s home telephone, and the fax machine at the Pence Company, the e‑mail address identified on that website was, as indicated earlier, hwpence@infi.net. In sum, while the record shows that Compton was, and is, closely affiliated with the Pence Company, we see no evidence that Compton was hiding its affiliation with the Pence Company, or that the Corps was unaware of that affiliation, or failed to give it reasonable consideration in the responsibility determination. See Universal Marine & Indus. Servs., Inc. , B-292964, Dec. 23, 2003, 2004 CPD ¶ 7 at 4. (Wild Building Contractors, Inc., B-293829, June 17, 2004) (pdf)

In this regard, the record shows that prior to issuing the purchase order to CMC as the apparent successful vendor, the agency contacted the firm to confirm its understanding of the RFQ’s requirements, particularly regarding replacement parts, sanding, refinishing, reupholstering, laminating, and painting, as well as the required timelines for the work. Contracting Officer’s Statement of Facts at 3. Further, the record shows that the contracting officer noted that CMC’s web site did not mention specific furniture refinishing work. She also noted, however, that it showed that the firm does business in a wide variety of fields, including supplying institutional interior products and services involving furniture and furnishings, food service equipment, construction services and marine products. The firm’s web site also demonstrated that much of its business involved CMC’s representation of specialized firms performing various contract requirements. The contracting officer reasoned that, as an experienced prime contractor, CMC would likely be able to obtain additional technical capability by subcontracting a substantial amount of the work in accordance with the RFQ’s allowance to do so. Moreover, CMC confirmed for the contracting officer that it had recently performed furniture refinishing work for the Department of the Navy aboard vessels in port. Noting CMC’s receipt of government contracts, and the fact that the firm holds an FSS contract (although not for furniture refinishing services), the contracting officer also recognized that other government agencies had affirmatively determined the firm to be responsible. Given all of the supporting information available to the contracting officer, it is clear from the record that not only did the contracting officer indeed consider the information TRT argues was ignored, but that its significance was reasonably considered in conjunction with the overall information she obtained supporting the firm’s responsibility. (The Refinishing Touch, B-293562; B-293562.2; B-293562.3, April 15, 2004) (pdf)

The extent to which the contracting officer was aware of the allegations against Adelphia’s principals and parent company is neither documented in the record nor explained by the agency. Nevertheless, we believe that the contracting officer’s general recognition that there were allegations of misconduct concerning Adelphia is not alone sufficient to establish that the contracting officer reasonably assessed the awardee’s record of integrity and business ethics. In fact, the contracting officer’s statements in response to the protester’s comments suggest that he may not have known relevant facts concerning Adelphia’s integrity and business ethics. That is, the contracting officer appears to argue that members of the Rigas family could not have any influence over Adelphia because these family members had resigned their positions as corporate officers and that “their status as stockholders was and is basically irrelevant.” Contracting Officer’s Affidavit at 2. However, significant evidence has been presented by the protester to show that Rigas family members continued (and continue today) to own a controlling interest in Adelphia due to their majority ownership of class B (voting interest) stock. Moreover, the record supports the protester’s assertion that some amount of “debtor-in-possession” financing has been provided to the awardee by Adephia Communications Corporation, the entity charged by the SEC with fraudulent conduct. Despite the apparent relevance of the potential control and influence of these Rigas family members and of Adelphia Communications Corporation, the record establishes that the contracting officer did not consider the extent of the Rigas family members’ stock ownership in Adelphia, and what influence or control over the awardee this ownership interest accorded them. Also, the record indicates that the contracting officer did not consider, nor was he apparently aware of, the relationship between the awardee and Adelphia Business Solutions (doing business as TelCove).

Based upon this record, we find that the contracting officer simply assumed that Adelphia had an adequate record of integrity and business ethics. This assumption appears to have been based upon the award recommendation of the pre-award survey, which did not address in any way Adelphia’s integrity or business ethics. In any event, the record does not establish that the contracting officer obtained sufficient information to decide, or for that matter even considered, Adelphia’s record of integrity and business ethics. In the absence of any consideration of the involvement, control or influence of the indicted Rigas family members and Adelphia Communications Corporation in the awardee, the contracting officer’s statements of general awareness of alleged misconduct on the part of the Rigas family members and Adelphia Communications Corporation is not sufficient to show that the contracting officer’s affirmative determination of responsibility is reasonable. Compare Impresa Construzioni Geom. Domenico Garufi v. United States, 52 Fed. Cl. 421, 428 (2002) (agency failed to reasonably consider questions concerning an awardee’s integrity and business ethics) with Verestar Gov’t Servs. Group, supra (agency specifically and reasonably considered questions concerning the awardee’s integrity and business ethics in making its responsibility determination). (Southwestern Bell Telephone Company, B-292476, October 1, 2003) (pdf)

In sum, the record establishes that the contracting officer had before him the adverse information that Verestar asserts he failed to consider. More important, the record is also clear that the contracting officer specifically considered the significance of this information in conjunction with other information that he obtained and which he viewed as ameliorating the concerns and risks that had been raised, whereupon the contracting officer made the considered affirmative determination that WorldCom was responsible and could perform. Accordingly, in light of the developed record, the protest does not raise a serious concern that the contracting officer unreasonably failed to consider relevant information or otherwise violated statute or regulation.  (Verestar Government Services Group, B-291854; B-291854.2, April 3, 2003)  (pdf)

Here, it is beyond dispute that the contracting officer had a reasonable basis to find XO nonresponsible prior to the bankruptcy filing. The only new element to which XO points with respect to the bankruptcy filing is the stand-alone plan. This was an alternative, fallback plan to the long promised and long-delayed Forstmann and TELMEX plan, a plan which the contracting officer, in his nonresponsibility determination, had reasonably concluded was unlikely to succeed. Further, the fallback stand-alone plan on its face depends on a series of uncertain contingencies and approvals. In this regard, it is noteworthy that to date, nearly four months after the filing, XO's bankruptcy reorganization plan has not yet been approved. In our view, the contracting officer was not obligated to parse the financial minutiae of XO's fallback bankruptcy restructuring plan as part of his nonresponsibility determination. On the contrary, where the record reflects that the contracting officer is cognizant of the alleged effects of a proposed reorganization plan and does not reference them as part of his nonresponsibility determination, we view this as merely indicating that the contracting officer gives the plan little weight. Harvard Interiors Mfg. Co., supra, at 6. Further, where, as here, the court has not yet given approval to the plan, and there is no indication of when, or if, the court would approve any of the proposed reorganization plans, the agency may reasonably give little or no weight to the proposed plan and to any associated favorable financial projections by the offeror. Id. Accordingly, the bankruptcy filing including the alternative stand-alone fallback restructuring plan provides no basis to call into question the reasonableness of the contracting officer's nonresponsibility determination.  (XO Communications, Inc., B-290981, October 22, 2002)

While the mere fact that a bidder files a petition in bankruptcy under Chapter 11 of the Bankruptcy Act does not require a finding of nonresponsibility, bankruptcy may nevertheless be considered as a factor in determining that a particular bidder is nonresponsible. Wallace & Wallace, Inc.; Wallace & Wallace Fuel Oil, Inc.--Recon., B-209859.2, B-209860.2, July 29, 1983, 83-2 CPD ¶ 142 at 5. Indeed, while not required, a contracting officer may reasonably view bankruptcy as something other than a favorable development. Id. at 5, n.1; see Harvard Interiors Mfg. Co., supra, at 6 (proposed reorganization plan that is unapproved at the time of award, and financial projections based on the plan, do not necessitate an affirmative responsibility determination). The risks to the government arising from the firm’s bankruptcy proceedings were a significant part of the contracting officer’s stated justification for her nonresponsibility determination. The protester has not shown that these risks were not significant or that the agency’s consideration of the risks associated with the protester’s bankruptcy proceedings was unreasonable.  (Global Crossing Telecommunications, Inc., B-288413.6; B-288413.10, June 17, 2002 (pdf))

In making a responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. See Blocacor, LDA, B-282122.3, Aug. 2, 1999, 99-2 CPD ¶ 25 at 4. We generally will not question a negative determination of responsibility unless the protester can demonstrate a lack of any reasonable basis for the contracting officer’s determination. Id. Here, Aulson has failed to make the required showing.   (Aulson & Sky Company, B-209159, May 21, 2002  (pdf))

Matters of an offeror’s integrity, such as involvement in criminal activities, generally concern the offeror’s responsibility.  Federal Acquisition Regulation (FAR) § 9.104-1(d); see Coast Waste Mgmt., Inc., B-251167.3, June 10, 1993, 93-1 CPD ¶ 460 at 4. However, in a negotiated procurement, an agency generally may incorporate traditional responsibility criteria as technical evaluation criteria, and then evaluate proposals under that criterion according to the rules established for technical evaluations. McLaughlin Research Corp., B-247118, May 5, 1992, 92-1 CPD ¶ 422 at 4. The question here, then, is whether the nulla osta statement requirement was converted into a technical evaluation matter that warranted rejecting Lotos’s proposal as unacceptable. There is nothing in the RFP indicating that the agency intended to convert the nulla osta statement into a matter of technical acceptability. Rather, it is fairly clear from the RFP that the agency viewed the entire CCIAA certification as a responsibility matter.  (A.I.A. Costruzioni S.P.A., B-289870, April 24, 2002) (pdf)

Standard asserts that it was improper for the agency to base its nonresponsibility determination on Standard's performance on contract Nos. 0621-S and 477-716, because neither of these contracts concerned performance at its Kirksville facility. In this regard, according to Standard, GPO has traditionally determined a bidder's responsibility based on its performance at the offered production facility. This argument is without merit. First, since past practice lacks the force and effect of law, GPO was not bound by its alleged prior approach to determining responsibility. See BMY, Div. of Harsco Corp., B-233081, B-233081.2, Jan. 24, 1989, 89-1 CPD para. 67 at 6 (internal agency policy not binding on agency because it lack force and effect of law). There is no other reason why the agency could not consider Standard's past performance at facilities other than that proposed for this contract. Considering such past performance information is not precluded by GPO's Printing Procurement Regulation (PPR) (see Ch. 1, sect. 5, para. 5(2), (4)), and it obviously is well within an agency's discretion to consider any relevant past performance information in determining a firm's responsibility. While performance at the same facility well may be the most relevant kind of past performance information, the manner in which a firm has carried out its contractual obligations at other facilities also is relevant to predicting whether it will satisfactorily perform the new contract.  See BMY, Div. of Harsco Corp., supra (contracting officer properly considered delinquent contract performance at different facility in finding firm nonresponsible).  (The Standard Register Company, B-289579, March 5, 2002).  

In this regard, although EPA previously determined that Laucks lacked the technical capability to meet the IFB requirements and thus was not responsible, after reopening the IFB to make additional awards, it found that Laucks now has the technical capability to meet the IFB requirements and thus is responsible. An agency can and should reverse a previous nonresponsibility determination based on additional information brought to its attention prior to award. Henry Spen & Co., Inc., B-183164, Jan. 27, 1976, 76-1 CPD para. 46 at 4.  (American Technical & Analytical Services, Inc., B-282277.5, May 31, 2000)

In making a responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency, or a lack of any reasonable basis for the contracting officer's determination. Miklin Corp., B-236746.2, Jan. 19, 1990, 90-1 CPD para. 72 at 1-2, recon. denied, B-236746.3, June 8, 1990, 90-1 CPD para. 540. Here, since the protester has not alleged bad faith on the part of the agency, the only issue for our consideration is whether the contracting officer reasonably found Blocacor nonresponsible based on its performance under the earlier contract for asbestos abatement.  (Blocacor, LDA, B-282122.3, August 2, 1999)