Agency: Department of the Army
Decided: September 2, 2016
General Counsel P.C. Highlight: The distinction between matters that are required to be “technically acceptable” and matters that establish “responsibility” dictate whether a proposal can be supplemented with additional, clarifying information.
Engility Corporation was eliminated from competition under a request for proposals for software and engineering support services after the Agency found Engility non-responsible. The RFP required all proposers to be presently in possession of facility clearance of Top Secret for the prime. It stated the Contracting Officer will screen for this “upon submission” in accordance with FAR 9.104-2.
Upon receipt of Engility’s proposal, the Agency sought to verify their Top Secret Clearance. Instead, the agency discovered the CAGE code provided belonged to TASC, Inc., with an address in another state.
The Agency sought to clarify this inconsistency. Discussions were had between the contracting officer and a security specialist at the Command Industrial Security Office to attempt to resolve the issue. Agency became aware of a merger between Engility and TASC, and was further made aware that the System for Award Management (SAM) indicated Engility was doing business as TASC under the provided CAGE code.
Over the course of several emails in the following days, the security specialist indicated, “My guess is that the buyout has not gone through novation.” After the security officer spoke with “someone” at the DSS facility in Chantilly, she conveyed the following to the Agency: there was a “buyout” involving Engility and TASC; he was unsure when the transaction would be completed; and that “a lot of paperwork. . . is required by DSS to process the change.”
Despite the documentation in SAM, the security specialist told the agency, in relevant part, “The CAGE code listed in Engility’s DD254 corresponds to a company (TASC) who at this point is not the same entity as Engility when researched in ISFD.” Therefore, the security specialist concluded Engility lacked Top Secret Security Clearance and as such, Engility was not eligible for the award.
Upon being notified of this decision, Engility responded, with the CAGE code for its Chantilly, Va. facility and some additional information, including that the CAGE code provided in the proposal was properly linked with Engility in SAM. The Agency notified Engility that the original determination that Engility was non-responsible stood. Engility then filed a protest.
As part of the record for the protest, Engility provided the documentation necessary that appears to establish that Engility did, in fact, acquire TASC, Inc.; consolidated a number of contracts; and that the name changes and agreements were submitted to the proper authorities. In short, the documents appear to establish that at all times during the application process, Engility was approved as top secret facility. Therefore, it appeared to the GAO that Engility met the requirements of the solicitation.
General standard of review regarding negative responsibility determinations
Generally, contracting officers are given “a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion.” Torres Int’l, LLC, B-404940, May 31, 2011, 2011 CPD ¶ 114 at 4. Determinations must be made in good faith and factually supported, however, “the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance.” Consequently, the GAO, as a general rule, will not disturb a determination of non-responsibility unless agency bad faith or a lack of reasonable basis can be established by the protester. Colonial Press Int’l, Inc., B-403632, Oct. 18, 2010, 2010 CPD ¶ 247 at 2.
Why the protest was sustained
The agency argued (correctly) that the RFP was a FAR part 16 acquisition and that the FAR part 15’s “evaluation and discussion” procedure was not applicable. The GAO agrees, but notes that “rules relating to clarifications and discussions have no application to possible inquiries regarding matters of responsibility.” (Citing McKissack+Delcan JV II, B-401973.2, B-401973.4, Jan. 13, 2010, 2010 CPD ¶ 28 at 6-8, the GAO noted that exchanges between an agency and an offeror regarding responsibility does not rise to the level of prohibited discussions.)
Further, determinations of responsibility or lack thereof must be determined based on information provided to the agency at any time up to the time the award is made. FAR § 9.105-1(b)(3); Sygnetics, Inc., B-404535.5, Aug. 25, 2011, 2011 CPD ¶ 164 at 4. Consequently, the GAO recommended the Agency review all the information now provided by Engility, and reconsider the non-responsibility determination.
In prior years, the agency categorized their security requirements as a matter of technical acceptability. In the current year, the agency categorized their security requirements as a matter of responsibility. Essentially, the court says, “You made your bed. Lie in it.” Having made the requirement of security clearance a matter of responsibility, the agency is bound to accept information provided at any time during the pendency of the proposal, up to the point of award.