Bid Protest Weekly | BID PROTEST LAWYERS

TMG Construction Corporation, B-407190, November 19, 2012

Link: GAO Protest

Protestor: TMG Construction Corporation

Agency: Department of the Army

Disposition: Protest Denied.


GAO Digest:

Protest arguing that solicitation requirement for top secret facility site clearance at time of award and requirement that contractor be capable of providing “safeguarding” (i.e., classified storage) capability at top secret level should be read together to require safeguarding approval at time of award is denied where it is clear from governing guidance that facility clearance determination is separate from storage capability determination.

General Counsel PC Highlight:

TMG Construction Corporation protested the award to JS Global, LLC of a contract for repair, renovation, and construction projects in the District of Columbia’s National Mall area. The RFP, issued as a small business set-aside, contemplated award on a best value basis, considering the following non-price evaluation factors: experience in task order construction contracts; experience with historical/monumental buildings; past performance in task order construction contracts; past performance in historical/monumental buildings; work plan; and seed project. Offerors were required to have an active top secret facility site clearance at the time of proposal submission, and the contractor would be required to provide classified storage capability at the top secret level. The agency conducted a tradeoff analysis, noting concerns that TMG’s slightly lower average price coefficient might not bring actual better value to the government, given its less relevant experience and past performance.

TMG argued that all other offerors failed to meet definitive responsibility criteria, in that they did not demonstrate that they possessed top-secret level safeguarding clearance prior to award. The GAO agreed with the agency, however, that the requirement to possess a top-secret facility clearance at the time of proposal submission did not imply a similar requirement for top-secret safeguarding approval. The agency was only required to determine that the prospective awardee had the capability to obtain the required level of clearance by the time of contract performance. Finally, the GAO found no reason to question the weaknesses assessed to TMG’s proposal, and further finding that, even if the weaknesses had been unreasonable, TMG’s proposal still would have been lower-rated.

The possession of required licenses, certifications, or clearances are generally matters of contractor responsibility, and, as such, do not fall within the GAO’s jurisdiction. Only where specific clearances are required at the time of award will the GAO consider protests that the awardee was lacking required clearances.