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Knowledge is power.

Posted by Vern Edwards, 05 January 2009 · 556 views

The rules of the contracting business can be Byzantine.

If you haven't read it already, read the GAO's decision in Pond Security Group Italia, JV, B-400149.3, December 22, 2008. Bob has posted it on the Wifcon home page.

The procurement was for security services at U.S. Army bases in Italy. The protester did not follow instructions in the RFP to provide a copy of an Italian license that was necessary to performance of the specified services. The protester had the license, but neglected to include a copy in its proposal. The government summarily rejected the proposal on the basis that the contractor was ineliglble for award.
The award was to be made without discussions, and it appears that the contracting officer thought that to ask for a copy of the license after receipt of proposals would have constituted discussions. The protester complained that the government's rejection was unreasonable and that the government should have contacted it about the missing copy of the license.

Here is where it gets Byzantine.

The GAO held that the license requirement was a "definitive responsibility requirement" under FAR 9.104-2, and that asking for a copy of the license would not have constituted discussions. The GAO has long held that exchanges between the government and an offeror that pertain to the offeror's responsibility, rather than to the acceptability of its proposal, are not discussions. See, e.g., General Dynamics Ordnance & Tactical Sys., Inc., Comp. Gen. Dec. B-295987, 2005 CPD ? 114. (The U.S. Court of Federal Claims has adopted the same position.) Nevertheless, the GAO denied the protest, ruling that while the contracting officer could have asked for a copy of the license, he was not obligated to do so. (The Court of Claims might not have gone along with that position.)

The underlying logic of the GAO's position appears to be that discussions, as described in FAR 15.306(d), are conducted in order to give offerors a chance to improve their competitive position by revising their proposals to eliminate weaknesses and deficiencies and to generally make them better. Since exchanges of information about an offeror's responsibility would not give it a chance to improve the competitiveness of its proposal relative to the proposals of other offerors, such communications would not constitute discussions. Since such communications would not constitute discussions, the contracting officer had no obligation to tell the offeror about the missing copy of the license.

Responsibility factors are pass-fail (go-no go) factors. An offeror either has a license or it doesn't. An offeror either has a satisfactory performance record or it doesn't. An offeror either has an adequate production control system or it doesn't. An offeror need not be responsible at the time of proposal submission or contractor selection, only at the time of contract award, which might follow contractor selection by a considerable amount of time. See, generally, Cibinic and Nash, Formation of Government Contracts, 3rd ed., pp. 405 - 406. An offeror that is not responsible at the time of proposal submission need not be eliminated at that time, and may even be conditionally selected for award. In a couple of cases the GAO has prohibited an agency from prematurely eliminating an offeror due to nonresponsibility when there was a chance that the offeror could become responsible by the time of award. See CFE Services, Inc.; Department of the Navy-Request for Reconsideration, Comp. Gen. Dec. B-212077, 84-2 CPD ? 459. The GAO has even permitted agencies to delay an award for a reasonable period in order to give a prospective awardee a chance to become responsible. See New Life Group, Inc., Comp. Gen. Dec. B-247080, 92-1 CPD ? 463.

When considered on a pass-fail basis, responsibility factors are not used to compare one offeror to another, only to determine the eligibility of a prospective awardee.
But responsibility-type factors can be used as traditional evaluation factors, as bases for comparing one offeror to another. See Capitol CREAG LLC, Comp. Gen. Dec. B-294958.4, 2005 CPD ? 31. Thus, an agency can compare two offerors on the basis of their performance records or production control systems and give one a more favorable evaluation than the other.

Does the GAO's "not discussions" rule about responsibility information apply when a responsibility-type factor is used to make comparative assessments? No. When responsibility-type factors are used as bases for comparing offerors to each other, or for determining the acceptability of a proposal as opposed to the responsibility of its offeror, then communication with an offeror about those matters might allow the offeror to improve its competitive standing relative to other offerors by revising its proposal to include more information. That kind of exchange of information would constitute discussions. See Global Associates Ltd., Comp. Gen. Dec. B-271693, 96-2 CPD ? 100, and AT&T, Comp. Gen. Dec. B-250516, 93-1 CPD ? 276.

FAR does not explain or even mention any of this, nor does any of the agency source selection guidance that I have seen. This is something you either know about or you don't. The only way to know about it is to be familiar with the GAO's case law. The way to do that is to study texts like Formation of Government Contracts, to read periodical analyses of decisions in publications such as The Government Contractor (weekly) and The Nash & Cibinic Report (monthly), to check websites like Wifcon, and to read decisions as they are published.

If you are a contracting officer and know these kinds of things you can fashion effective acquisition strategies for your agency, navigate around procedural obstacles, avoid mistakes, and get things done without breaking the rules. Such knowledge is contracting officer knowledge⎯not source selection authority knowledge, not program manager knowledge, not even agency lawyer knowledge. That's why a knowledgeable contracting officer is both necessary and important, and why knowledgeable contract specialists have a leg up when it comes to good assignments and promotions. Every program manager wants a contracting officer who knows the ropes and who can get the job done one way or another, without getting the program manager's name in the newspaper.

Knowledge is power.

Outstanding point, Vern!
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