GAO Walks the Line on Whether Facility Clearance is Proposal Acceptability or Responsibility Matter

Your small business is interested in submitting a proposal that requires a Department of Defense Facilities Clearance (FCL). While you will not have the required FCL when proposals are due, you have applied for the FCL and all signs indicate you will have the FCL by the time contract performance begins. In this scenario, can the agency outright deny your proposal or would it have to refer your proposal to the SBA for a certificate of competency? Turns out, it all hinges on whether GAO views the FCL requirement as a matter of proposal acceptability or corporate responsibility.

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5 Things You Should Know: SBA Certificates of Competency

If a contracting officer determines that a small business offeror is not qualified to perform under a solicitation, that usually means the offeror’s proposal will be rejected. In some instances, however, the offeror gets a second chance through the SBA’s Certificate of Competency (“COC”) program.

Here are five things you should know about the COC program.

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GAO Says SBA Certificate of Competency is (Usually) Outside its Jurisdiction

The breadth and depth of protests heard by GAO may lead even a seasoned government contractor to overlook the limitations of GAO’s jurisdiction.

As one contractor recently found, the GAO generally will not consider protests based on an allegation that the agency should not have referred an adverse responsibility determination to the SBA for a certificate of competency review.

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GAO: Past Performance Evaluation Not Required In LPTA Set-Aside Competition

An agency was not required to evaluate past performance under an SDVOSB set-aside solicitation that contemplated making award to the lowest-price, technically-acceptable offeror.

According to a recent GAO bid protest decision, a past performance evaluation in the context of an LPTA set-aside is essentially duplicative of the agency’s evaluation of responsibility, meaning that a separate past performance evaluation isn’t necessary.

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Small Business Wins Contract Despite “Unacceptable” Key Personnel Score

A small business received an “unacceptable” score for its key personnel, but nevertheless was awarded the contract after the matter was referred to the SBA under the Certificate of Competency procedures.

A recent decision by the U.S. Court of Federal Claims demonstrates the breadth and power of the so-called “COC” process, which can allow an otherwise “unacceptable” business to wind up in the winner’s circle.

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GAO: Agency Properly Refused SBA COC Time Extension

A contracting agency is not required withhold a contract award so that the SBA has more time to process a Certificate of Competency, even when the SBA itself asks for an extension.

The Government Accountability Office decided recently that it was reasonable for an agency to move ahead with an award while the SBA was still in the process of determining the competency of a small business that lost out on the contract.

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FedBid And The SBA: My Interview With Francis Rose

Earlier this month, the GAO sustained two protests filed by Latvian Connection LLC–one on a State Department procurement and one on a Department of Interior procurement–because Latvian Connection’s FedBid usage had been suspended.  The GAO held that this was improper because the matter had not been referred to the SBA under the SBA’s Certificate of Competency program.

Yesterday, I appeared on In Depth With Francis Rose to discuss the Latvian Connection cases.  Please follow this link to listen to the audio of my interview, and don’t forget to tune in to Federal News Radio every weekday from 4:00 to 7:00 p.m. for Francis’s top-notch show.