Pigs Do Fly: Bid Protest Challenging an Affirmative Determination of Responsibility is Sustained by GAO
In the world of GAO post-award bid protests, there are certain arguments that are particularly prevalent amongst sustained protests (such as the failure to follow the solicitation evaluation criteria, inadequate documentation of the source selection decision, unequal treatment of offerors, and unreasonable price or cost evaluation), and there are other arguments that while less prevalent are by no means uncommon amongst sustained protests (such as unreasonable consideration of affiliate experience/past performance, and lack of meaningful discussions). However, there is one particular protest basis that is so rarely sustained it could reasonably be considered the “flying pig” of sustained protests at GAO — a protest challenging an affirmative determination of the awardee’s responsibility (not related to a definitive responsibility criteria). Yet, this past week GAO sustained a bid protest on this very basis (FCi Federal, Inc., B-408558.4, et al., October 20, 2014).
How rarely does GAO sustain a protest challenging an affirmative determination of responsibility? This author could only locate three other protests that have been sustained by GAO on this basis since 2003. During that period over 850 protests were sustained by GAO, meaning this protest argument accounts for less than 1% of sustained protests over the past 11 years!
Although rarely seen, the FCi Federal decision is unlikely to open the flood gates to protests on this basis. First, GAO’s protest regulations (4 CFR 21.5(c)) specifically limit GAO’s review when considering protests challenging affirmative determinations of responsibility. As explained by GAO:
As a general matter, our Office does not review affirmative determinations of responsibility by a contracting officer. …. We will, however, review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible.
Second, in the FCi Federal protest there was abnormally clear evidence that the contracting officer had failed to consider information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible:
In sum, the record in this case includes ample evidence that the contracting officer may not have considered information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. Specifically, the contracting officer failed to obtain and consider the specific allegations of fraud alleged by the DOJ, relying instead on general media reports. The contracting officer also failed to consider the close relationship between USIS PSD and its parent, USIS LLC, with respect to the contemplated approach to contract performance, mistakenly believing that the two companies were separate, when USIS itself informed the agency that USIS PSD was not “independent, or even semi-independent” from its parent. …. The contracting officer also apparently misunderstood the legal standards related to affirmative responsibility determinations, mistakenly believing that a finding of nonresponsibility results in a de facto debarment without due process, and thus was unavailable to the contracting officer. As a result, we find the contracting officer’s affirmative determination of responsibility to be unreasonable.
Finally, its worth noting the potential reward for protests brought on this basis is minimal. Even if such a protest is sustained, the likely result is that the agency will conduct a new responsibility determination considering the information it had previously ignored. If after that reevaluation the agency still finds the awardee responsible, the protestor will likely be unable to challenge the reasonableness of that determination.