Link: GAO Opinion
Agency: Environmental Protection Agency
Disposition: Protest denied.
General Counsel P.C. Highlight:
GAO denied the protest of Coastal Environmental Group, Inc. regarding the Environmental Protection Agency’s (EPA) award of a contract to PK Management Group under an invitation for bids (IFB), for remediation of lead contaminated soil in Omaha, Nebraska.
The IFB provided for the award of a fixed-price, indefinite-delivery/indefinite-quantity contract with performance incentives, for a one-year base period with three one-year options, to “the lowest bidder who is deemed to be both a responsible and responsive bidder.” Bids had to include resumes for key personnel responsible for the work specified in the PWS, and the resumes had to demonstrate compliance with specific experience requirements for each position.
Coastal argues that the awardee’s bid should have been rejected as nonresponsive for submitting key personnel resumes that failed to demonstrate the required experience. Coastal argues that the unique performance requirements in the PWS shifted what is normally viewed as a matter of responsibility to one of responsiveness. Initially, GAO concluded that the solicitation requirements involved matters of responsibility, not responsiveness. 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. Responsibility, on the other hand, relates to a bidder’s capability to perform the contract.
Coastal argues that the experience requirements in the 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. In Coastal’s view, the requirement created a performance obligation out of the experience requirement, transforming an otherwise responsibility matter into a responsiveness one. GAO disagreed, stating that 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.