Flunking Subcontracting Limitation is a proposal acceptability issue, not responsibility issue

The Governement Accountability Office sustained (Case B-298364.6; B-298364.7, TYBRIN Corporation, March 13, 2007) the protest of a total small business set aside contract where the apparent winner did not meet the limitations on subcontracting. The Air Force tried twice to get that contractor qualified (note: adding the work actually performed by the contractor with the work of small business subcontractors does not count), eventually getting an SBA Certificate of Competency.

The GAO's response to that was:

[the] Air Force’s determination that [the apparent winner's] proposal failed to comply with a material term of the solicitation (the subcontracting limitation) and, [thus] could not form the basis for award under the RFP, the agency should have found [their] proposal to be unacceptable, rather than finding [them] nonresponsible and forwarding the matter to the SBA for its consideration.

The SBA disagreed. It believes that whether or not a small business contractor will perform the contract is a responsibility issue. However, the GAO's "final" comment is:

the issue here does not concern whether a bidder or offeror can or will comply with the subcontracting limitation requirement during performance of the contract (where we recognize that the matter is one of responsibility) ...but
rather, whether the bidder or offeror has specifically taken exception to the subcontracting limitation requirement on the face of its bid or proposal.
Given that [this] circumstance involves the evaluation of a bid or proposal for compliance with a material term of the solicitation, the determination is one of responsiveness or acceptability, rather than responsibility.

It is simply a matter of the contractor meeting the requirements in the RFP.

Do you use criminal background checks for contractor responsibility determinations?

The Government Accountability Office (GAO) was asked (by the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs) to comment on whether criminal background investigations were used to determine contractor responsibility before contract award.

In a nutshell, the GAO said, "no" and that the FAR doesn't say to do that. Then, as part of their discussion, GAO mentioned that the only use of them in the contracting world is when allowing access to military bases or for security clearances.

Perhaps this is another of the "oversight" categories that the current session of Congress will be focusing on. The "good" news is that all the focus on the failings of contractors will mean more emphasis on government employees doing that work.

Until we all retire and go away.

The GAO's high risk concerns in the news again.

You may have seen the headlines about the GAO's high risk series. There is not a lot of new issues here. This report contains a good bibliography of GAO products that address issues of contract management and transformation. The areas of high risk (out of a total of 27) that are of interest to DoD procurement people and when they made "the list:"

Area Year designated high risk
DOD Supply Chain Management 1990
DOD Weapon Systems Acquisition 1990
DOE Contract Management 1990
NASA Contract Management 1990
DOD Contract Management 1992
DOD Financial Management 1995
DOD Business Systems Modernization 1995
DOD Support Infrastructure Management 1997
DOD Approach to Business Transformation 2005
Management of Interagency Contracting 2005

Read the report, look at the references and get ready for more oversight.