GAO decisions/Dismissed/Decided 4 Nov 2024
Newt Marine Service
Challenge to an affirmative responsibility determination
The procurement
The Corps issued an invitation for bids under FAR part 14 on June 4, 2024, as a small business set-aside to build islands in the Mississippi River for habitat rehabilitation, with award on price and price-related factors. The IFB said the apparent low bidder's responsibility would be determined under FAR subpart 9.1 and required it to submit a description of self-performed work, three years of financial statements, and a bank certification of financial capability. The Corps posted award to Legacy Corporation of Illinois on SAM.gov on September 12, 2024, and Newt Marine protested on September 23.
The protest
Newt Marine argued the contracting officer should not have found Legacy responsible. It pointed to alleged performance problems on three earlier Legacy contracts and a news article reporting that Legacy had been found nonresponsible in an unrelated procurement, where SBA refused it a certificate of competency. It said the contracting officer failed to consider this information, Legacy's finances, and its access to production means under FAR 9.104, and that Legacy's low bid showed it did not understand the work.
The agency’s answer
Legacy asked GAO to dismiss before the agency report was due, and the Corps joined. They argued that GAO does not review a contracting officer's affirmative determination of responsibility and that Newt Marine's allegations fit neither of the narrow exceptions in GAO's regulations.
What decided it
Poor performance on unrelated contracts isn't a serious matter that opens a responsibility finding to review.
GAO dismissed the protest. It generally will not review an affirmative responsibility determination unless the protest alleges definitive responsibility criteria were not met, or identifies evidence raising serious concerns that the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. The IFB referred only to FAR subpart 9.1's general standards, and allegations of poor past performance, including a nonresponsibility finding in an unrelated procurement, are not serious matters of the kind that trigger review. GAO also dismissed the low-price argument, because price realism does not apply to sealed bidding.
“As our decisions have stated, assertions of poor past performance do not rise to the level of a serious matter which would trigger review of a contracting officer's affirmative responsibility determination.”
GAO, B-422968
For the file: If an objective qualification must be proven before award, write it into the solicitation as a specific definitive responsibility criterion; a reference to FAR subpart 9.1 is not one. Still document what you considered, because ignored evidence of fraud or criminal conduct can open a responsibility finding to GAO review.
Authorities: 4 C.F.R. § 21.5(c); FAR 9.103(b); FAR 9.104-1; 4 C.F.R. § 21.0(d). Read the decision at GAO →
Facts are condensed from the published decision and the quote is verbatim; the takeaway is ours. Where GAO decided several grounds, only this one is described.
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