SBA Certificate of Competency COC Program & Bid Protests
You Can Avoid Common Mistakes and Spending Unnecessary Legal Fees By Understanding the SBA and Government Certificate of Competency (COC) Process.
The SBA’s COC Program is governed by the Small Business Act, 15 USC 37(b); 13 CFR 125.5 and FAR Part 19.6.
A Government Certificate of Competency is a written document from the Small Business Administration (SBA) to a Government contracting officer (CO) that decides whether the referred small business demonstrates the capability to perform the contract if awarded.
The COC certificate allows the apparent successful bidder a legal venue to appeal to the contracting offer’s negative responsibility determination to award it a prime Government contract.
Protesting the Government’s Certificate of Competency Referral to the SBA
When filing a bid protest regarding a contracting officer’s SBA referral, there are certain landmines that small businesses should be aware of.
- The concern in COC certificate referral must be an issue of contractor responsibility and not responsiveness to the solicitation requirements.
- Understand that SBA has exclusive authority to determine the responsibility of a small business.
- When there is a legitimate concern about contractor responsibility, the government contracting agency has to refer the matter to the SBA.
Being Non-Responsive to Solicitation Requirements Does Not Require Referral to the SBA
GAO often has ruled that a government contracting agency is not required to refer the matter to the SBA if your proposal, on its face, should lead the agency to the conclusion and you have not complied with a material term or condition of the solicitation, the matter is one of the proposal’s acceptability and not an issue of the offeror’s responsibility. See TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD ¶ 51 at 6 (proposal that on its face does not satisfy a solicitation’s limitation on subcontracting clause concerns the acceptability of the bid, and not the offeror’s responsibility).
Responsiveness Vs. Responsibility for SBA & Government Certificate of Competency Referrals
Often, source selection officials confuse solicitation responsiveness issues with responsibility determinations.
This a difficult area to litigate during a bid protest. Once the agency decides that the issue is a responsibility determination, most GAO bid protest cases tend to agree. However, the Court of Federal Claims in the Manus Case made a unique ruling.
Contracting agencies must first get past the proposal submission stage before reaching proposal evaluation. The Court stated that:
- Offerors have an affirmative duty to submit a proposal that conforms to the explicit requirements outlined in the solicitation.
- Submitting a proposal and evaluating a proposal are two distinct steps, and failure at one step does not equal the failure at the other.
Responsiveness for purposes of Government certificate of competency determinations applies to both negotiated best value procurements and LPTA awards.
The court stated that when evaluating an LPTA award, the contracting agency when making its evaluation on a Pass/Fail basis, procurement law does not alter the fact that assessing the proposal’s responsiveness is a discrete step, or that bid responsiveness determinations are first required before making a responsibility determination.
When a bidder fails to provide material solicitation requirements, then a government contracting agency cannot evaluate submitted proposal information.
If an offeror is not responsive to the solicitation’s requirements, the contracting offer cannot reach the question of contractor responsibility, and thus is not required to refer the matter to the SBA. See Pacific Sky Supply, Inc., B-215189 et al., 85-1 CPD ¶ 53, at 4 (Comp. Gen. Jan. 18, 1985).
Government Agency Cannot Avoid its Obligations by Sending All Proposal Defects to the SBA.
In the Manus case, the Court of Federal Claims made a very stern ruling that a government contracting government cannot lawfully cure proposal defects by submitting them to the SBA for Certificate of Competency determination.
For help litigating a bid protest based on an SBA or Government Certificate of Competency, or other issues in the COC Program, call our bid protest lawyers for a FREE INITIAL CONSULTATION.
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