Agency: Department of Health and Human Services
Disposition: Protest Sustained
Decided: April 18, 2017
General Counsel P.C. Highlight: Agency must comply with the Small Business Administration’s (SBA) Certificate of Competency (COC) procedures where Agency rejects a proposal as unacceptable due to failure to demonstrate required capabilities.
Summary of Facts: The March 14, 2016 Request For Proposals (RFP) called for up to 35 indefinite-delivery, indefinite-quantity (IDIQ) contracts under an existing government-wide acquisition contract (GWAC) for IT solutions and services. The solicitation contemplated both cost-reimbursement task orders and fixed-price, time-and-materials task orders during the pendency of the contract, to end in 2022.
The solicitation called for a two phase evaluation. Phase 1 of the evaluation included four “Go/No-Go” requirements, including, under the management approach factor, subfactor 1, “domain-specific capability in a health-related mission.” The government’s evaluation included whether the offeror demonstrated “an inherent domain-specific capability in a health-related mission. . . through experience examples or internal resources with substantial relevant experience.”
Over 500 proposals were received, including a proposal by Competitive Range Solutions, LLC (CRS). During the Phase 1 evaluation, the Agency found CRS’ proposal unacceptable, in that the examples CRS provided did not involve provision of IT services and solutions “sufficient to demonstrate inherent capabilities in health-related missions.” Nor did the proposal demonstrate internal resources with relevant experience. Consequently, CRS was eliminated from the competition.
CRS’ bid protest followed.
Basis for the Protest: CRS argued the agency’s determination CRS’ proposal failed to have sufficient capabilities was tantamount to a non-responsibility determination, which should have referred to the SBA under SBA’s COC procedures. The Agency disagreed, arguing their elimination of the proposal does not constitute a determination CRS lacked the requisite capabilities, but rather the proposal was not responsive to the solicitation. Consequently, the Agency asserted, there was no responsibility determination such that a referral would be appropriate.
The GAO disagreed with the Agency, noting, where a contracting officer “refuses to consider a small business concern for award of a contract or order after evaluating the concern’s offer on a non-comparative basis (e.g., a pass/fail, go/no-go, or acceptable/unacceptable) under one or more responsibility type evaluation factors,” the contracting officer is required to refer the issue to the SBA for consideration for a COC review.
Protest Sustained: The Agency evaluated the proposals first on a Go/No-Go basis. At that time, CRS was eliminated from consideration. Before such an elimination, the Agency should have referred the matter to the SBA for a COC determination, because to eliminate the proposal on a Go/No-Go evaluation under these circumstances constitutes a non-responsibility determination.
Additionally, GAO recommended the Agency reimburse CRS reasonable costs of filing and pursing its protest, including reasonable attorneys’ fees.