Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Where record shows that contracting agency reasonably determined small business protester’s proposal technically unacceptable on the basis of factors not related to responsibility, referral to Small Business Administration for Certificate of Competency review was not required, even though agency also found the proposal unacceptable based on responsibility-related considerations.
General Counsel P.C. Highlight:
LP challenges the agency’s determination that its proposal was technically unacceptable. The protester also argues that the agency treated the two offerors unequally by conducting a thorough investigation of its manufacturing subcontractor’s facilities, while failing to visit EFI’s production facility.
GAO states first that where an agency determines the proposal of a small business such as the protester to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of nonresponsibility, meaning that referral to the Small Business Administration (SBA), which has the ultimate authority to determine the responsibility of small business concerns, is required. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility as well as responsibility-related ones, referral to the SBA is not required, however.
While it is clear from the record that the agency determination of technical unacceptability was based in large part on concerns pertaining to the manufacturing capabilities of the protester’s proposed subcontractor, which are responsibility-related, it is also apparent that those concerns were not the only basis for the determination of technical unacceptability; as a consequence, GAO concludes that the determination of technical unacceptability was not essentially one of nonresponsibility requiring referral to the SBA. In particular, LP’s final proposal failed to demonstrate compliance with the RFP requirement that the dimensions of the proposed luminaires not exceed the dimensions of the legacy fixtures. While the protester furnished an acceptable response to the agency discussion letter notifying it that four of its proposed luminaires exceeded the allowable dimensions, LP did not incorporate this response into its final revised proposal; rather, LP’s final proposal repeated the information contained in its initial proposal. Given that LP’s final proposal did not demonstrate compliance with the solicitation requirement pertaining to fixture dimensions, the evaluators reasonably determined it technically unacceptable under the design and performance subfactor.
The evaluators also had a reasonable basis for determining the protester’s proposal unacceptable under the logistic support subfactor. The solicitation provided for the evaluation of the offeror’s ability to furnish repair and replacement parts under this subfactor. During discussions, LP replaced Hubbell as its manufacturing subcontractor, without making any corresponding revisions to its approach to furnishing replacement parts. That is, LP’s final proposal still identified Hubbell as the source for its spare parts. GAO finds that the evaluators reasonably determined unacceptable the protester’s proposed approach of relying upon Hubbell as its source for spare parts for fixtures that Hubbell was not manufacturing. The protest is denied.