You Say Responsibility, GAO Says Acceptability, Let’s Call the Protest Off
November 25, 2014
By: Eric Whytsell
Just because a small business award involves security clearance issues does not automatically mean there is a “responsibility matter” that must be referred to the Small Business Administration (SBA) for a Certificate of Competency (COC) determination. Sometimes, as in the recent case of MT & Associates, LLC, B-410066 (October 17, 2014), the protestor simply fails to convince the agency that it can fulfill the solicitation requirements, including the required clearances for its personnel. Under such circumstances, there is no need for a COC referral.
At the heart of this protest are solicitation provisions requiring that “intermittent [personnel] “shall possess a TS/SCI [security clearance] at contract start date” and explaining that “[p]ersonnel clearances for the intermittent personnel will be evaluated for the prospective awardee only, just prior to contract award.” Unfortunately, despite numerous exchanges with the agency during discussions, MT & Associates (MTA) focused more on the need to have cleared personnel “at contract start date” than on being able to meet that requirement “just prior to contract award” as mandated in the solicitation. As a result, MTA was forced to scramble to get commitments from cleared personnel in the hours just before the proposal deadline. Ultimately, those efforts were unsuccessful: MTA was unable to obtain the signatures of the required individuals.
When the agency awarded the contract to MTA’s competitor, MTA protested, asserting both that the agency had failed to conduct adequate discussions and that it had failed to refer MTA’s proposal to the SBA for a COC determination. The GAO made quick work of both arguments.
With respect to the adequacy of discussions concerning MTA’s lack of cleared personnel, the GAO concluded that the agency’s discussions went well beyond leading MTA into the area of its evaluated deficiency, which is all that is required for meaningful discussions. In particular, the GAO noted that the agency’s initial discussions directed MTA to complete the Personnel Security Clearance Information form “in full”. That form included columns for each proposed individual requiring “Type of Investigation/Date,” “SCI Eligibility Date,” “Status of SCI,” and “Govt. Sponsor.” According to the GAO, when coupled with the “clear and unambiguous” solicitation requirement that the clearances be in place “at contract start date” and the statement that clearances would be evaluated “just prior to contract award,” the agency’s direction “to complete these columns can only reasonably have been understood to indicate that MTA was required to identify in its proposal intermittent interpreters with a TS/SCI clearance.”
That conclusion in turn gutted MTA’s argument concerning the need for a COC determination by the SBA. While the “the ability to obtain a security clearance is generally a matter of responsibility” to be considered by the SBA, such a determination is only necessary where the solicitation does not require a demonstration of the clearance prior to award, “which would indicate that the requirement was a definitive responsibility criterion.” Unfortunately for MTA, the solicitation here contained just such a requirement – and MTA’s final proposal did not identify any personnel with the required clearances.
As the GAO explained, “[i]n these circumstances, the agency could reasonably conclude that, notwithstanding MTA’s assurances that it was working on obtaining certain unidentified intermittent interpreters with the requisite clearance, the fact that its timely submitted proposal identified interpreters without the requisite clearance called into question MTA’s commitment to comply with this requirement, thus furnishing a basis for rejecting the proposal as unacceptable.”
This decision underscores the importance of paying close attention to both the solicitation and the agency’s comments during discussions. It’s easy for offerors to misinterpret requirements, particularly when the requirements are difficult to meet. To avoid this trap, when an agency conducts discussions contractors should listen very carefully to what the agency is “saying” – step back and assess their understanding of the requirements in light of input from the agency – and revise their proposals accordingly.
Eric Whytsell is responsible for the contents of this article.
© Jackson Kelly PLLC, 2014