As relevant here, the RFP stated that offerors would be required to hold “at a minimum, an interim secret facility clearance prior to the RFP closing date.” RFP amend. 1, at 7. The RFP did not expressly state that offerors were required to provide documentation concerning this requirement in their proposals. However, in an email to the protester on August 28, 2009, after receipt of proposals, the agency asked Waterfront to address the following question: “Does your company hold at a minimum an ‘INTERIM SECRET FACILITY CLEARANCE’ prior to the RFP closing date as referenced in paragraph 1.10.2 of the subject SOW?” AR (B-401948.13), Email from DOL Contract Specialist to Waterfront, Aug. 28, 2009. The protester responded that it did not have an interim secret facility clearance. AR (B-401948.13), Email from Waterfront to DOL Contract Specialist, Aug. 28, 2009. Based on the foregoing, DOL has argued throughout the various protests that Waterfront’s proposal did not meet a mandatory solicitation requirement and therefore should not have been considered eligible for award. See, e.g., CO Statement (B-401948.13), Oct. 7, 2010, at 3 (“In reviewing the procurement process for this award [in response to Waterfront’s protests], the Solicitor’s Office disclosed that DOL inadvertently evaluated Protester’s proposal, notwithstanding its failure to comply with the facility clearance requirement.”); AR (B-401948.13) at 15-16.

Our Office has held that the ability to obtain a security clearance is generally a matter of responsibility, absent an express requirement in the solicitation to demonstrate the ability prior to award. Calian Tech. (US) Ltd., B-284814, May 22, 2000, 2000 CPD ¶ 85 at 10; Ktech Corp.; Physical Research, Inc., B-241808, B-241808.2, Mar. 1, 1991, 91-1 CPD ¶ 237 at 3. Under the Small Business Act, 15 U.S.C. § 637(b)(7) (2006), the SBA has conclusive authority to determine the responsibility of small business concerns. Thus, when a procuring agency finds that a small business is not eligible for award based on a nonresponsibility determination or a failure to satisfy definitive responsibility criteria, the agency is required to refer the matter to the SBA for a final determination under its certificate of competency (COC) procedures. Specialty Marine, Inc., B-292053, May 19, 2003, 2003 CPD ¶ 106 at 3.  (Waterfront Technologies, Inc.--Protest and Costs, B-401948.16; B-401948.18, June 24, 2011)  (pdf)

The agency and the protester agree that the requirement for all companies in a joint venture to submit valid prefecture licenses to provide security guard services constituted a definitive responsibility criterion. Responsibility is a term used to describe the offeror’s ability to meet its contract obligations. See FAR subpart 9.1. A contracting officer may not make an award to a contractor unless the contracting officer makes an affirmative determination of responsibility. FAR sect. 9.103(b). In most cases, responsibility is determined on the basis of general standards set forth in FAR sect. 9.104-1, and involves subjective business judgments that are within the broad discretion of the contracting activities. Bryan L. and F.B. Standley, B-186573, July 20, 1976, 76-2 CPD para. 60 at 5.

However, in some solicitations, as is the case here, an agency will include a special standard of responsibility, referred to by our Office as a definitive responsibility criterion. See FAR sect. 9.104-2. In effect, definitive responsibility criteria represent an agency’s judgment that an offeror’s ability to perform in accordance with the contract must be measured against specific requirements, compliance with which at least in part can be determined objectively. The Mary Kathleen Collins Trust, B-261019.2, Sept. 29, 1995, 96-1 CPD para. 164 at 3. An offeror must show compliance with definitive responsibility criteria as a precondition to award. Coastal Elecs., Inc., B-250718, Feb. 16, 1993, 93-1 CPD para. 144 at 6-7.

Pond asserts that the determination that it was not responsible was unreasonable since the agency knew or should have known, had it made any effort to gather more information, that each of the companies in Pond’s joint venture possessed the required prefecture licenses. Specifically, Pond acknowledges that the required licenses were not included in its proposal, but asserts that regardless of the terms of the RFP, evidence pertaining to a definitive responsibility criterion may be obtained at any time prior to the award, and that the contracting officer was required to solicit further information on Pond’s licensing before making a determination of responsibility. According to Pond, it was improper for the agency to base its nonresponsibility determination solely on a “mechanical review” of the documents in Pond’s proposal.

We agree with the protester that matters of responsibility are to be determined at the time of award, and that regardless of the terms of the RFP, information pertaining to the protester’s responsibility could have been submitted at any time prior to award. LORS Med. Corp., B-259829, B-259829.2, Apr. 25, 1995, 95-1 CPD para. 222 at 4. It is well-established that the terms of a solicitation cannot convert a matter of responsibility into one of proposal acceptability. See Mobility Sys. and Equip. Co., B-243332, Apr. 25, 1991, 91-1 CPD para. 412 at 3. However, we do not agree that the contracting officer was required to seek out additional information pertaining to Pond’s responsibility, and we conclude that the contracting officer properly determined that Pond failed to meet a definitive responsibility criterion based on a review of the submitted documents.

To the extent Pond argues that the agency was obligated to contact it upon discovering that the prefecture licenses were not included in its proposal, we disagree. An agency is not required to contact an offeror prior to making its determination; a contracting officer may base a negative determination of responsibility on evidence in the record, without affording offerors the opportunity to explain or otherwise defend against the evidence. Victor Graphics, Inc., B-249297, Oct. 19, 1992, 92-2 CPD para. 252 at 3-4. It is the duty of the bidder to supply all necessary documentation to establish its responsibility. Yellowhorse Indus., B-250282, Jan. 12, 1993, 93-1 CPD para. 35 at 4. More specifically, whether an offeror has complied with a definitive responsibility criterion relating to the submission of a specific license or certification is an objective determination that is made on the basis of the documents submitted to the contracting officer prior to the time of the award. See The Mary Kathleen Collins Trust, supra.

Here, in light of the RFP’s clear admonition that an offeror was to submit all required documents with its initial proposal, and the fact that Pond did not submit the required prefecture licenses with its proposal or at any other time prior to award, we see no basis to object to the agency’s determination that Pond failed to meet a definitive responsibility criterion contained in the RFP.  (Pond Security Group Italia, JV, B-400149.3, December 22, 2008) (pdf)

Boyle argues that Visionary could not demonstrate that it was capable of passing the MCEP audit prior to the award due to the fact that Interstate Ventures, on whose operating experience Visionary relied, had unacceptably high SEA scores, which meant that Visionary was not able to demonstrate its ability to pass an MCEP audit. Boyle also contends that Visionary, which has no operating experience of its own, could not rely upon Interstate Ventures’ experience to satisfy this responsibility requirement because Visionary’s final revised proposal indicated that Interstate Ventures would have no role in the performance of the contract services.  Because the determination that an offeror is capable of performing a contract is largely committed to the contracting officer’s discretion, GAO generally will not consider protests challenging affirmative determinations of responsibility except under limited, specified exceptions. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2007); Verestar Gov’t Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD para. 68 at 3-4. The exceptions are protests that allege that definitive responsibility criteria in the solicitation were not met and those that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. sect. 21.5(c). A definitive responsibility criterion is a specific and objective standard, qualitative or quantitative, that is established by a contracting agency in a solicitation to measure an offeror’s ability to perform a contract. Moreover, in order to be a definitive responsibility criterion, the solicitation provision must reasonably inform offerors that they must demonstrate compliance with the standard as a precondition to receiving the award. Public Facility Consortium I, LLC; JDL Castle Corp., B-295911, B-295911.2, May 4, 2005, 2005 CPD para. 170 at 3. Contrary to Boyle’s contentions, the requirement for an offeror to demonstrate in its proposal the capability to pass the MCEP audit by completing and submitting MCEP prescreening audit forms is not a definitive responsiblity criterion. This provision did not contain a specific and objective standard. Moreover, amendment 4 to the RFP specifically deleted the requirement that made passing the MCEP audit a precondition to the award, and recognized that passing the MCEP audit would take place after the award. Thus, this provision only concerns the agency’s determination of the general responsibility of the awardee, that is, its ability to perform the contract consistent with all legal requirements. Id.  (T. F. Boyle Transportation, Inc., B-310708; B-310708.2, January 29, 2008) (pdf)

As a general rule, the experience of a technically qualified subcontractor or third party--such as an affiliate or consultant--may be used to satisfy definitive responsibility criteria relating to experience for a prospective prime contractor. In considering whether the experience of a third party subcontractor or affiliate may be relied upon by a prime bidder to meet an experience criterion, we examine the record for evidence of a commitment by the third party to the bidder’s successful performance of the work. MEI, Inc., supra, at 3; Tutor-Saliba., Perini Corp., Buckley & Co., and O & G Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD para. 223 at 5-6. Here, the agency contacted ECI Northeast and requested that it provide information establishing that ECI Northeast had completed three S/S projects as required by the IFB. AR, Tab 2, Agency E-mail to ECI Northeast. ECI Northeast responded by providing information regarding three projects completed by ECI, which the contracting officer “accept[ed] . . . as valid,” based upon his understanding that “ECI Northeast [is] a branch office of ECI.” AR, Tab 2, ECI Project Summaries; Contracting Officer’s Statement at 4. The contracting officer explains here that when first reviewing ECI Northeast’s bid, he “could not retrieve a CCR [central contractor registration] registration for ECI Northeast,” so he “called the phone number on the bid and was informed that ECI Northeast is just a branch of [ECI].” Contracting Officer’s Statement at 2. The agency, while recognizing that ECI is the “parent company” of ECI Northeast, also points out that the bid, which was submitted by ECI Northeast, provided the name and address of ECI in block 16, remittance address, of Standard Form 1442, the IFB cover sheet. AR at 9, 13. The information received by the agency does not, in our view, provide sufficient evidence of ECI’s pre-award commitment to ECI Northeast’s successful performance of the contract. Specifically, we do not understand, and the agency has not explained, why the mention by an ECI Northeast employee that ECI Northeast is a “branch office” of ECI establishes such a commitment. As indicated by the agency, ECI and ECI Northeast appear to be separate corporate entities, with ECI being the parent company. Nor has the agency explained why the fact that ECI’s address appears in the remittance box of the IFB cover sheet establishes such a commitment. There is simply no information in the record providing a commitment on ECI’s part to ECI Northeast’s successful performance of the contract, and thus, no way to establish that ECI Northeast, and by extension, the agency, would reap the benefit of ECI’s experience. Accordingly, under the circumstances here, the agency could not properly consider the experience of ECI in determining whether ECI Northeast met the solicitation’s definitive responsibility criteria, and we sustain this aspect of Charter’s protest. (Charter Environmental, Inc., B-297219, December 5, 2005) (pdf)

A definitive responsibility criterion is a specific and objective standard, qualitative or quantitative, that is established by a contracting agency in a solicitation to measure an offeror’s ability to perform a contract. In order to be a definitive responsibility criterion, the solicitation provision must reasonably inform offerors that they must demonstrate compliance with the standard as a precondition to receiving award. SDA, Inc.--Recon., B-249386.2, Aug. 26, 1992, 92-2 CPD para. 128 at 2-3. Here, the zoning provision cited by the protesters is not, in our view, sufficiently specific to establish a definitive responsibility criterion; rather, the provision essentially requires, in general terms, that each offeror comply with unspecified and unidentified “local zoning laws.” Further, the provision does not in any way reasonably inform offerors that the SFO imposes on offerors mandatory compliance with a specifically identified zoning law as a definitive precondition for award. SDA, Inc.--Recon., supra. Rather, as GSA and the intervenor argue, this zoning provision concerns the agency’s determination of the general responsibility of the awardee, that is, its ability to perform the contract consistent with all legal requirements. In this regard, it is clear that the SFO provision is not a matter of technical acceptability, since evidence of compliance with zoning laws was not a technical evaluation factor; compliance with the solicitation’s general requirement for zoning approval could be satisfied by the offeror as late as the time of performance. VA Venture; St. Anthony Med. Ctr., Inc., B-222622, B-222622.2, Sept. 12, 1986, 86-2 CPD para. 289 at 4-5. The real question, then, is whether GSA should have found Harwood to be nonresponsible. Because the determination that an offeror is capable of performing a contract is largely committed to the contracting officer’s discretion, GAO generally will not consider protests challenging affirmative determinations of responsibility except under limited, specified exceptions. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2005); Verestar Gov’t Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD para. 68 at 3-4. One specific exception is where a protest identifies “evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation.” Id. This includes protests where, for example, the protest includes 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. Verestar Gov’t Servs. Group, supra, at 4; Universal Marine & Indus. Servs., Inc., B-292964, Dec. 23, 2003, 2004 CPD para. 7 at 2. While both protests were sufficient to satisfy the threshold requirement that a protest raise serious concerns that the contracting officer may have failed to consider relevant responsibility information suggesting that Harwood would not be able to obtain the necessary special exception, the fully developed record in this case shows that the protesters’ challenge is unfounded; the record shows that the contracting officer did consider the available information furnished in Harwood’s offer and reasonably determined Harwood’s capability to perform. In this regard, the record shows that the contracting officer was aware of, and specifically considered, the fact that, although Harwood’s offered site currently was zoned for light manufacturing permitting office space no greater than 20,000 square feet, local zoning laws permitted use of the site for the proposed SSA building with special exception. In this connection, Harwood’s proposal disclosed the zoning status of Harwood’s proposed site, and Harwood described the process it intended to follow to obtain the special exception from the City of Roanoke. The contracting officer reports that he considered the likelihood of Harwood obtaining the special exception approval in the context of Harwood’s representations of a probable rezoning by the City of Roanoke of its offered site from light manufacturing to industrial permitted use development, such that office buildings larger than 20,000 square feet would be permitted as of right. The contracting officer therefore concluded that Harwood had submitted acceptable evidence of its capability to perform. CO Statement of Facts at 2. (Public Facility Consortium I, LLC; JDL Castle Corporation, B-295911; B-295911.2, May 4, 2005) (pdf)

Where, as here, a protester asserts that a definitive responsibility criterion has not been satisfied, we will review the record to ascertain whether evidence of compliance has been submitted from which the contracting official reasonably could conclude that the criterion had been met; generally, a contracting agency has broad discretion in determining whether offerors meet definitive responsibility criteria. Carter Chevrolet Agency, Inc., B-270962, B-270962.2, May 1, 1996, 96-1 CPD para. 210 at 4. Further, literal compliance with definitive responsibility criteria is not required where there is evidence that an offeror has exhibited a level of achievement equivalent to the specified criteria. HAP Constr., Inc., B-278515, Feb. 9, 1998, 98-1 CPD para. 48 at 4; Western Roofing Serv., B-232666.3, Apr. 11, 1989, 89-1 CPD para. 368 at 4. We find no basis to question the agency’s position that experience managing or supervising the operation of the Cohen and Switzer buildings was qualifying experience. The Cohen and Switzer buildings, while having two separate street addresses, share many of the same basic operating systems. The agency reports, and the protester does not dispute, that many of the Cohen and Switzer buildings’ electrical, mechanical, and plumbing systems are unified operating systems with the equipment sized to operate the two buildings together. For example, the two buildings share a single, common chiller system for cooling the buildings. The two buildings are serviced by a single, common feed that supplies high pressure steam, and by a single, common electrical feed. (Indeed, the two buildings are billed by the steam and electrical providers as if they were one building.) The heating and air conditioning of the two buildings are controlled by a single, common energy management control system. Furthermore, contracted commercial facilities management services for the two buildings have always been obtained under one contract, and the buildings have always been serviced as one. Since the combined occupiable square footage of the two buildings is 971,425 square feet, and the two buildings function as one building in most important respects, we find that GSA has reasonably concluded that experience managing or supervising the operation of the two buildings could satisfy the IFB’s requirement for experience managing or supervising an 800,000 square foot building. (Vador Ventures, Inc., B-296394, B-296394.2, August 5, 2005) (pdf)

Definitive responsibility criteria are specific and objective standards, qualitative or quantitative that are established by a contracting agency in a solicitation to measure an offeror's ability to perform a contract. AT&T Corp., B-260447.4, Mar. 4, 1996, 96-1 CPD para. 200 at 5. In order to be a definitive responsibility criterion, the solicitation provision must reasonably inform offerors that they must demonstrate compliance with the standard as a precondition to receiving award. Id. Here, the provisions pointed to by the protester are not sufficiently specific to establish definitive responsibility criteria; rather the provisions essentially require in general terms that each offeror have the appropriate expertise, training and licenses in order to successfully perform the contract requirement. The cited provisions do not specify any particular experience level or specify any particular time, prior to award, by which an offeror must demonstrate the necessary experience or meet the licensing requirement. Accordingly, the cited provisions do not represent preconditions to award, but rather performance obligations, enforceable by the agency as a matter of contract administration. Compro Computer Servs., Inc., B-278651, Feb. 23, 1998, 98-1 CPD para. 58 at 4.  (AJT & Associates, Inc., B-284305; B-284305.2, March 27, 2000)