Contractor responsibility is to be considered before every federal contract award, but what about task orders issued under an FSS contract? Are contractors still subject to responsibility inquiries when competing for orders?
According to GAO, the answer is, “yes.”
When choosing the most appropriate awardee for any federal contract, agencies are required to fully document all procurement decisions and their rationale, especially when those decisions could narrow the competition.
In Soft Tech Consulting, Inc., B-416934 (Comp. Gen. Feb. 1, 2019), GAO held that the Department of Homeland Security failed to adequately document its evaluation decision in a procurement for software development services and recommended that DHA reevaluate all offers from square one.
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
In Adams and Associates, Inc., B-417120 et al. (Comp. Gen. Jan. 16, 2019), GAO dismissed a post-award protest, which alleged agency bias and retaliation against the protester, as untimely.
The GAO’s decision highlights the uphill battle contractors face when alleging agency bias.
Among its suggestions to streamline the acquisition process,
the Section 809 Panel has proposed to eliminate the ability to file a protest
at GAO and the Court of Federal
Claims. Instead, the Panel would require protesters to choose between filing at
GAO or the Court.
Let’s take a look.
GAO sustained a protest recently where a contractor misrepresented
to the agency that it had negotiated offers with incumbent workers when in fact
it had not.
In a protest before GAO, prejudice is an essential element. Even if GAO might agree that an agency’s action was improper, it will not sustain a protest where the protester would not have received the award anyway.
That’s what happened in the protest of Benaka Inc., B-416836 et al. (Dec. 16, 2018).