Responsibility Determinations & Business Ethics Bid Protests

Getting non responsibility determinations can cripple your chances of winning a federal government contract. For example, when you submit a government proposal, your past experiences can sometimes take a toll on whether you get the award. More specifically, when the agency issues a non responsibility determination under the FAR for past issues with contractor business ethics, this can play a crucial part on your overall evaluation.

Non Responsibility Determination Under FAR Rules

When you submit a government proposal, FAR § 9.104-1(d) mandates that “a satisfactory record of integrity and business ethics” is a prerequisite for a prospective contractor to be deemed responsible. GAO has ruled that a company’s record of integrity and business ethics is not task specific when it comes to issuing non responsibility determinations.

• An alleged commission of fraud while performing one type of service is not irrelevant to the company’s integrity and ethics, even where the agency feels it may be in a better position to catch any potential future fraud more quickly due to the level of agency supervision of contractor employees.

Bid Protest Allegations

If you are challenging the agency’s award in a bid protest on the grounds of a competitor’s responsibility determinations, you should also provide specific facts and details about the awardee’s business ethics violations, procurement fraud decisions, or suspension or debarment information.

• Oftentimes, source selection officials overlook specific FAR clauses and merely rely on the technical evaluation directions in the solicitation.
• This oversight can create an advantage for you when filing a bid protest.

Addressing Non Responsibility Determinations in Bid Protests

A successful bid protest is possible if a protestor provides facts to support an allegation that an awardee has a previous history of government investigations, fraud allegations or matters that directly question the awardee’s business ethics. Sources of such information for purposes of issuing a non responsibility determination could come from:

• Department of Justice investigations,
• SBA 8(a) program terminations, or
• Previous suspension or debarment proceedings.

What Level of Consideration is Required?

It is well-known that government contracting agencies have wide discretion when evaluating proposals. However, the discretion has limitations when certain FAR clauses are involved.

Typically, when conducting responsibility evaluations, the government contracting agencies must document their review of the details and make a reasonable determination about its findings as to whether or not a bidder is responsible enough to perform the contract.

• The weight of the CO’s non responsibility determination is as good as her documentation.
• GAO may not simply rule that every contractor that has issues in the past is automatically non-responsible.

Contractor Business Ethics

When a contractor has past issues with its business ethics, the contracting agency should not ignore these facts.

For example, when there are investigations about procurement fraud or false claim acts violations, these investigations should trigger an inquiry that ultimately leads to non responsibility decision. See also information about the Mandatory Disclosure Rule.

For additional help or questions about a competitor’s non responsibility determinations based upon procurement fraud, business ethics, or other relevant situations, call our bid protest lawyers at 1-866-601-5518 for a free consultation.