GAO Case – Wrong LPTA Contracts Vs Technically Unacceptable Proposal Approach

The Government Accountability Office (“GAO“) recently denied an LPTA contracts protest case where the protestor, US21, Inc., challenged the agency the Defense Logistics Agency the award of a contract to United Capital Investment Group, Inc. for delivery of fuels in the Kingdom of Jordan The protestor argued that  DLA unreasonably found its proposal unacceptable and that is also failed to refer the matter to the Small Business Administration for an SBA Certificate of Competency (COC) determination.

Important in this case, the solicitation stated that the contract award would be to the offeror that submitted the lowest-priced, technically acceptable proposal for a particular lot of CLINs ( best price evaluations approach). Each offeror’s proposal would be evaluated for technical acceptability based on three subfactors:  (1) supply, (2) transportation, and (3) quality assurance operations

Here this LPTA contracts case required bidders to provide certificates of analysis (COAs) for fuel products, as follows:  “Offerors shall submit a copy of a certificate of analysis for all products offered from their supplier/refinery with their offer.  The certificate of analysis should have test results of a recent batch of the required products.”  

There were previous GAO protests filed and the DLA took corrective action.

On the second go around the protestor revised its proposal included a revised quality control plan but did not include a COA as required in the solicitation.  As a result, DLA decided that US21’s proposal was unacceptable for award under the supply subfactor of the technical evaluation factor.  DLA also evaluated US21’s revised quality control plan was also unacceptable and thus deciding that the bid protest was ineligible for award.  

LPTA Contracts and Technically Unacceptable Proposals

The approach to this best price evaluations protest seems to be why the protestor lost. There are certain steps taken when government contractors submit proposals for LPTA contracts. Before the government decides whether your proposal is technically acceptable, it must first see if you have met all of the proposal requirements. If the proposal defect is due to failure to submit a required document or something else in the proposal, courts would have a hard time substituting the source selection board’s decision.

To avoid such mishaps, federal contractors may want to use a compliance checklist. In this case, the agency had two reasons for deciding that US21’s proposal was technically unacceptable.

SBA Certificate of Competency – COC Referral of Best Price Evaluations Bid

Government contracting agencies cannot seek to an SBA certificate of competency determination to cure a proposal defect for best price evaluations bids.  See Manus Medical, LLC,. When a company fails to submit information expressly called for in the solicitation, the legal issue becomes one of proposal responsiveness versus contractor responsibility. GAO did not agree with the protester’s argument that DLA was required to refer the matter to the SBA for a COC determination. 

Under federal procurement law, contracting agencies must send Agencies must send a small business offeror to the SBA for a certificate of competency determination under the criteria set forth in 15 USC 637(b)(7); 13 CFR 125.5; and Federal Acquisition Regulation, FAR 19.6. 

Takeaway

When filing a bid protest to the GAO or COFC, you want to make sure that you have first met of expressed requirements for documents or information as stated in the solicitation. Once you have met that requirement and the government still believes that it has concerns about your ability to perform the contract, then it should send for an SBA certificate of competency determination.

For additional help with SBA certificate of competency determinations, contact the government contract attorneys at Watson & Associates, LLC for immediate help. Call 1-866-601-5518.