HYPO:

A Contracting Officer finds a company "responsible" just before making award. The CO makes award. After sending out the Notice of Award letters, an unsuccessful offeror files a protest at GAO alleging misevaluation of its own proposal. The agency takes corrective action. It takes 15 months to reevaluate and complete the corrective action. The results of the corrective action are the same as before: the original awardee is the awardee again. The CO did not "redo" the responsibility determination for the awardee. Instead, the CO believes that the previous responsibility determination they did -- which is now 15 months old -- is "still good." After making award and sending out the Notice of Award letters to the unsuccessful offerors, the same protester from before files a protest at GAO.

QUESTIONS:

Was the corrective action proper if the CO did not "redo" the responsibility determination, but instead, relied on the 15 month old responsibility determination from before? Is there a time limit on how long a CO's responsibility determination is good for?

If the contracting officer satisfied everything in FAR 9.105-1(c ) and documented proof in accordance 9.105-2(b ), then no formal determination is required under 9.105-2(a). The signature on the contract is a determination. If the requirements of 9.105-1© were not met then you are in the area between where a determination was made - based on the signature - but it was not documented in accordance with 9.105-2(b ). I am teleworking today so I do not have access to my library to see if there are on point cases, but I would be surprised if there were not any.

As a remedial action it may be a good idea to run the checks now and document (and conduct training/issue policy to avoid the issue in the future) to show that the mistake was identified and proactively handled.

govt2310:

Is the awardee a small business?

Yes.

The CO did not "redo" the responsibility determination for the awardee. Instead, the CO believes that the previous responsibility determination they did -- which is now 15 months old -- is "still good."

The contracting officer erred. He or she is required to make a responsibility determination for every new contract award. He or she could use the same information again, and could come to the same conclusion, and the FAR doesn't require a written determination of responsibility, but this is different than not doing one at all. If he or she didn't do one for the new contract, and admits that he or she didn't do one, he or she erred.

A responsibility determination is only good for that particular contract for which it was done. A new contract requires a new responsibility determination.

However, this error might not be prejudicial to the unsuccessful offeror, so a protest might not be sustained on this basis.

govt2310:

You said that the CO made an award, then a protest was filed, then corrective action was taken, and then the original awardee was selected again.

Was the original award terminated prior to or during the corrective action? Was there a second award or merely a second and confirming selection decision?

The original award was never terminated. The CO simply "froze" the contract by doing the CICA stay of performance. It was frozen for 15 months, then "unfrozen" when it turned out that the original awardee was the awardee again after corrective action.

gov2310,

This new information contradicts your original posting, doesn't it? Apparently, there was no new contract award (even though you say there was in the original posting). If there was no new contract award, then there is no need for a new responsibility determination. There is no need for the contracting officer to believe that the previous responsibility determination he or she did -- which is now 15 months old -- is "still good" -- that responsibility determination only has a purpose at the issuance of the contract. All the contracting officer has to do is to cancel the stop work order for the already-awarded contract.

One thing to remember if you are dealing with small businesses: only the SBA can determine if a small business is NOT responsible per FAR 19.6-1.

The original award was never terminated. The CO simply "froze" the contract by doing the CICA stay of performance. It was frozen for 15 months, then "unfrozen" when it turned out that the original awardee was the awardee again after corrective action.

One should get all the pertinent facts before answering a question posted here.

The proper terminology is suspended, not "froze."