And that would be a walk in the park when compared to major contracting problems daily confronted by procurement and other acquisition personnel.
It is likely, no matter how satisfied with the overall result, there is always some little, or large, snag that sticks with you: yes, the contractor was good enough but....
And just because you've found a good contractor for your kitchen cabinetry does not mean that the contractor will be right for a bedroom extension; or that, since they did a good job this time that they will do a good job next time, when weather, staffing or time constraints provide different obstacles for the contractor to surmount.
An assessment of contractor responsibility is a broad concept, averaged over many experiences. It is certainly no guaranty of perfect performance in any future or other circumstance. It is an assessment more easily conducted in hindsight, but one that must be made in advance of performance whenever a new job comes along.
In the procurement context, the assessment of responsibility seeks to answer the question, does this proposed contractor have the integrity, the reliability, and the capability to do this particular job that I need to have done?
In the procurement context, the assessment of responsibility is as fundamental a precondition to contracting as is the analysis of the contractor's proposal for doing the work according to your needs and specifications. It is as fundamental a precondition, but one confronted in a different time and manner than the framework for determining if the bid or proposal is acceptable. (Matters of responsibility and responsiveness are very often, and mistakenly, conflated. See this prior post on that subject.)
In the procurement context, the procuring officials are generally, and to an extent necessarily, given the benefit of the doubt when making determinations that require a large or small degree of subjective judgment, but they are given very little discretion to judge matters that have specific, objective criteria or specification.
The following US Court of Federal Claims case serves as discussion for some of these observations. The protester, Akal Security, Inc., alleged the government (here, the United States Marshals Service (“USMS”) for the Fourth US Judicial Circuit), wrongly awarded a contract for court security services to another contractor, "Walden".
Although the Court's synopsis of the case says it was a "bid" protest, it arises from an Request for Proposals (RFP), so the award was not determined by the lowest bid, but rather by an evaluation of proposals submitted, compared to the specifications of the RFP, on a "best value" basis. (See this prior post.)
There were several other issues in the case, but I will focus on the responsibility issue here.
Akal Security, Inc., vs US, case No. 11-562C, filed December 29, 2011
(http://www.uscfc.uscourts.gov/sites/default/files/BRADEN.AKAL122911.pdf)
[Akal's complaint said the award should not have been made to Warden because, it was alleged:] USMS’s determination that Walden was a responsible contractor was arbitrary, capricious and an abuse of discretion; USMS’s responsibility determination for Walden violated FAR 9.104-1 and Section L-15 of the solicitation, because Walden failed to disclose the DOL Investigation; and USMS’s evaluation of Akal’s and Walden’s “Corporate Experience” was arbitrary, capricious, and an abuse of discretion.
Akal argues that “[t]here is no evidence in the Administrative Record that the SSA (source selection authority) exercised his independent judgment for awarding the Fourth Circuit Contract to Walden,” as required by FAR 15.308. Although the SSA can rely on the analysis contained in the CO Award Recommendation, the SSA must “review the agency’s evaluations . . . ensure their accuracy, compare the results, and then form his or her independent conclusion . . . .” Computer Sciences Corp. v. United States, 51 Fed. Cl. 297, 320 (2002). Instead, the SSA simply signed his name next to the word “Approved” on the CO Award Recommendation. There is no evidence in the Administrative Record that the SSA did anything more than sign the CO Award Recommendation, violating FAR 15.308.
[The Court held] FAR 15.308 has two relevant requirements: 1) the SSA must use his or her independent judgment in making a source selection and 2) the source selection decision must be documented, including the rationale for any business judgments and tradeoffs made or relied on by the SSA. FAR 15.308, however, does not require that a separate document be written by the SSA indicating the rationale, only that the documentation include any rationales “made or relied on by the SSA . . . .” Id. (emphasis added); see also Computer Sciences, 51 Fed. Cl. at 320 (“[A]ll the SSA is required to do is review the agency’s evaluations of past performance, ensure their accuracy, compare the results, and then form his or her independent conclusion based on this information.”); Latecoere Int’l, Inc., B-239113, B-239113.3, 92-1 CPD ¶ 70, 1992 WL 15029 at *6 (Comp. Gen. Jan. 15, 1992) (“[T]here is no legal requirement that an SSA personally write the document that reflects the award selection decision.”)
In this case, the SSA approved the CO Award Recommendation that included a 10-page memorandum and the enclosed TEB Final Report, both of which document “the rationale[s] for any business judgments and tradeoffs made.” See generally AR Tab 65. The SSA did not author a separate document, but adopted the rationales of those documents by signing his name next to the word “Approved.”
This situation is not comparable to Information Sciences Corp. v. United States, 73 Fed. Cl. 70 (2006), wherein the SSA unilaterally changed the ratings of the offerors and made an award selection different than that of the CO’s recommendation, without any explanation of why he elected to adopt a dissenting minority report. Id. at 119-21. The key difference between the two cases is that in Information Sciences, there was no documentation of “the business judgments . . . made . . . by the SSA.” FAR 15.308 (emphasis added).
In this case, there was documentation of “the business judgments . . . relied on by the SSA.” Id. Therefore, additional documentation would be redundant. See RALPH C. NASH & JOHN CIBINIC, The Source Selection Decision: Who Makes It?, 16 No. 5 NASH & CIBINIC REP. ¶ 25 (2002) (“[I]n the great majority of procurements, we believe the source selection decision is a team decision, and we further believe that is as it should be. . . . [In a situation where there are conflicting recommendations from team members], the job of the SSA is to reconcile the conflicts. If the SSA encounters that rare instance where they cannot be reconciled, the SSA should reach a full understanding of the reason for the conflicts and make a source selection decision based on the best reasoned recommendation.”)
[Akal claimed] the RFP required the CO (contracting officer) to make a responsibility determination pursuant to the criteria set forth in FAR 9.104-1 and 9.104-2, and the Special Standards of Responsibility, as set forth in the RFP. In particular, the Special Standards of Responsibility require that offerors disclose “any threatened, pending or current litigation. Moreover, without “information clearly indicating that the prospective contractor is responsible, the [CO] will make a determination of non-responsibility.”
[The Court held] FAR 9.105-1(a) requires the CO to “possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable [responsibility] standards . . . .” 48 C.F.R. § 9.105-1(a). The United States Court of Appeals for the Federal Circuit, however, has determined that “the contracting officer is the arbiter of what, and how much, information he needs.” John C. Grimburg Co. v. United States, 185 F.3d 1297, 1303 (Fed. Cir. 1999); see also Bilfinger Berger AG Sede Secondaria Italiana, B-402496, 2010 CPD ¶ 125, 2010 WL 2581928 at *4 (Comp. Gen. May 13, 2010) (“Contracting officers generally are entitled to rely on information available to them at the time of a responsibility determination, absent any indication that the information is defective, unsupported, or suspect.”); cf. Sw. Bell Tel. Co., B-292476, 2003 CPD ¶ 177, 2003 WL 22380947 (Comp. Gen. Oct. 1, 2003) (requiring the Air Force to make a new responsibility determination where the CO was aware of allegations of impropriety against winning bidder, but “simply assumed” that the responsibility requirement was met).
Thus, it was within the discretion of the CO to determine whether to request information on “threatened, pending, or current litigation” in the first place. Further, although failure to provide requested information may be a basis for a non-responsibility determination, it need not be, given the discretion afforded the CO. See Consortium HSG, B-292699.6, 2004 CPD ¶ 134, 2004 WL 1432862 at *4 (Comp. Gen. June 24, 2004) (“Without a showing that the CO unreasonably failed to consider available information, [the GAO] will not consider a protest challenging the CO’s affirmative responsibility determination.”).
It appears likely that disclosure of the DOL investigation would not have changed this finding. Moreover, Walden disclosed the related Bonner litigation. Thus, the facts underlying the DOL investigation and their effect on the responsibility determination were known and considered by the CO. Finally, the contract award in this case was approximately $164 million, so the effect of the DOL investigation on Walden’s financial capability to perform the contract likely would be minimal.
For these reasons, the court has determined that the CO’s responsibility determination as to Walden was not arbitrary, capricious, irrational, nor a violation of law. See Bender Shipbuilding & Repair Co. v. United States, 297 F.3d 1358, 1362 (Fed. Cir. 2002) (stating that responsibility determinations are “largely a matter of judgment” and thus “are normally entitled to considerable discretion and deference,” as long as a decision has “a rational basis and [is] supported by the record . . . .”)
If you select the tag above, Determining Responsibility, you will find many other posts discussing that matter in other contexts and detail. The points I want to make here are:
First, under the ABA Model Code, and Guam law, there is no requirement for a written or other record of determination that a bidder or offeror is responsible. All that is required is that, before award, the procurement officer must be satisfied that the bidder/offeror is responsible. (2 GAR § 3116(b)(4).)
In stark contrast, if the bidder/offeror is determined not to be responsible in the particular solicitation, the procurement officer must make a determination of non-responsibility. (2 GAR § 3116(b)(5).)
Second, as the case above illustrates, reviews of the procuring agency determinations in the US federal system are judged based on the deferential "arbitrary, capricious, or abuse of discretion" standard. This is based both on established case law and, more to the point, statutory requirement.
In high contrast, on administrative appeal of a protest matter to the Office of Public Auditor in Guam, the standard of review is on independent "de novo" basis (5 GCA § 5703.). And, her determination is, on appeal to the Superior Court, entitled to "great weight and the benefit of reasonable doubt". (5 GCA § 5704.) [Note that on a direct appeal to the Superior Court of an agency protest, not by way of the OPA, the determination of non-responsibility is judged by the clearly erroneous, arbitrary or capricious standard; 5 GCA § 5245.]
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