For small businesses, the SBA’s Certificate of Competency process can offer a powerful “second bite at the apple,” essentially allowing a small business to appeal to the SBA if a procuring agency finds the small business non-responsible.
But the SBA CoC process is limited to findings of non-responsibility under FAR Part 9. As GAO recently held, there is no right to appeal to SBA if the proposal was rejected for failing to adequately explain the small business’s technical approach.
A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.
A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.
What is the difference? Let’s look at the two terms and their practical effect on a company’s ability to cure deficiencies.
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?
The Section 809 Panel has recommended that Congress eliminate most small business set-asides for DoD acquisitions. The Panel would replace the longstanding set-aside system with a meager five percent small business price preference.
For small government contractors, this recommendation is the policy equivalent of a five-alarm fire. Small contractors may need to fight hard to save the set-aside system.
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.
Contracting officers have wide discretion to determine that a business can perform the work in question—even if the business is about to enter bankruptcy.
In a recent GAO protest, an unsuccessful offeror challenged just such a determination, saying that there is no way the awarded business could perform because it was nearly bankrupt. But according to the GAO, so long as the agency considered the pending bankruptcy, it was not improper to make an award.