What do you do if a federal agency awards a contract to one of your competitors, but the competitor in question does not possess certain licenses required by the solicitation? At least in one recent GAO bid protest decision, the answer appears to be, “not much.”
In GAO Protest of SIMMEC Training Solutions, B-406819 (Aug. 20, 2012), the protester complained–correctly–that the prime contractor lacked two required licenses. The GAO ruled against the protester anyway, holding that it lacked jurisdiction to consider the licensing challenge.
The SIMMEC Training Solutions GAO bid protest decision involved a Navy small business set-aside solicitation for combat first aid instruction. Because the work involved using live animals for training purposes, the solicitation called for the successful contractor to have a valid American Association for Accreditation of Laboratory Animal Care (“AAALAC”) certification, as well as a certification from the U.S. Department of Agriculture.
After evaluating proposals, the Navy awarded the contract to Tier-One Quality Solutions. SIMMEC Training Solutions filed a GAO bid protest, alleging in part that TQS lacked the AAALAC and USDA certifications. TQS admitted that it did not possess the certifications, but stated that its subcontractor had the required certifications, and that TQS was in the process of obtaining them.
The GAO denied SIMMEC’s bid protest. The GAO wrote that where a solicitation requires necessary certifications and licenses, the provision “must be satisfied by the successful offeror during contract performance . . . offerors are not required to satisfy the requirements as a precondition to award, and the requirements do not affect the award decision, except as a matter of a contractor’s general responsibility.”
The GAO continued, “[w]e generally do not review affirmative determinations of responsibility, except in circumstances not alleged or demonstrated here.” In addition, “because TQS is a small business, any issue concerning the awardee’s responsibility is a matter for the Small Business Administration under its certificate of competency program.” The GAO concluded, “ultimately, whether TQS complies with the certification and license requirements is a matter of contract administration, which we do not review.”
The SIMMEC Training Solutions GAO bid protest decision may put potential protesters in a tough spot. If a contractor loses an award to an unlicensed competitor, the SIMMEC Training Solutions case suggests that there might not be much the losing contractor can do about it.