In a recently published GAO decision, GAO sustained a SDVOSB’s protest of its exclusion from the competitive range by NIH under the CIO-SP3 SB GWAC procurement. 

The CIO-SP3 SB RFP required an evaluation of proposals in two phases. NIH evaluated offerors in Phase 1 under four “Go/No-Go” requirements, including factor 2, management approach, subfactor 1, domain-specific capability in a health-related mission. NIH found the protester’s proposal unacceptable under this factor/subfactor because the protester’s proposal was “not sufficient to demonstrate inherent capabilities in health-related missions” and did not demonstrate that the protester possessed the requisite capability. 

The protester argued that NIH’s exclusion of its proposal for failing to have sufficient capabilities in health-related missions amounted to a non-responsibility determination that should have been referred to the SBA under SBA’s Certificate of Competency (“COC”) procedures. GAO considered the Small Business Act and implementing regulations concerning small business responsibility determinations: 

The Small Business Act provides that it is the SBA’s duty to certify to government procurement officers with respect to all the elements of contractor responsibility (including capability, competency, capacity, credit, integrity, perseverance, and tenacity) of any one or group of small business concerns to receive and perform a specific government contract. 15 U.S.C. § 637(b)(7)(A). SBA’s implementing regulations specifically require a contracting officer to refer a small business concern to SBA for consideration for a COC when the contracting officer “[r]efuses to consider a small business concern for award of a contract or order after evaluating the concern’s offer on a non-comparative basis (e.g., a pass/fail, go/no-go, or acceptable/unacceptable) under one or more responsibility type evaluation factors (such as experience of the company or key personnel or past performance).” 13 C.F.R. § 125.5(a)(2)(ii).

Based on the law and regulations, GAO sustained the protest. GAO found that because NIH evaluated offerors on a go/no-go basis—as opposed to a competitive basis—and deemed the protester not to be capable, that constituted a responsibility-type determination that should have been referred to SBA for a COC. GAO recommended that NIH refer the matter of the protester’s responsibility to SBA and, if SBA issues a COC, NIH should evaluate the protester’s proposal under Phase 2.

About the Author: Megan Connor, a partner with PilieroMazza, focuses her practice in the areas of government contracts, small business administration programs, business and corporate law, and litigation. She may be reached at [email protected].