Link: GAO Opinion
Agency: U.S. Army Corps of Engineers
Disposition: Protest denied.
General Counsel P.C. Highlight: GAO will not question a negative responsibility determination unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination.
Bilfinger Berger AG Sede Secondaria Italiana (BBSSI) protests the award of a contract under a request for proposals (RFP), issued by the U.S. Army Corps of Engineers (Army), for construction, repair, and facilities maintenance services in Italy.
The RFP was for award on a “best value” basis. The offerors were required to submit a Societa Organismi D’Attestazione (SOA), which is a certification evidencing compliance with Italian law regarding the qualifications of companies competing for public works contracts. BBSSI’s proposal included an SOA in the name of a related company, Bilfinger Hochbau GmbH (BBH), a debarred contractor.
In considering BBSSI’s responsibility, the contracting officer (CO) found that BBSSI and BBH had an extremely close business relationship. The Army also received an opinion from an Italian legal expert to determine the effect of BBSSI’s use of BBH’s SOA. Based on the information gathered by the CO, the CO determined that BBSSI would have “full disposal of BBH’s assets and resources” and would likely avail itself of those assets. Based on the close relationship between BBSSI and BBH, the CO determined that BBH was indirectly offering on the solicitation through BBSSI and, therefore, BBSSI was not a responsible offeror.
BBSSI challenges the agency’s negative responsibility determination. In making a negative responsibility determination, a CO is vested with a wide degree of discretion and must rely on his or her business judgment in exercising that discretion. The determination must be factually supported, but GAO will not question the negative determination unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. In this case, the GAO found that CO’s determination was based on extensive information on which the CO 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. The FAR prohibits debarred firms from submitting offers for government contracts either directly or indirectly. GAO finds that the CO reasonably relied on the evidence in concluding that BBH essentially was proposing through BBSSI, and that BBSSI was nonresponsible. The protest is denied.