The Army Corps of Engineers issued a solicitation for construction support services in Afghanistan. The solicitation included a clause that required contractors to has "access eligibility" to U.S. military installations and to remain eligible throughout the contract period of performance. To be eligible for military installation access, the contractor must have been registered and approved in a database called the Joint Contingency Contracting System (JCCS) prior to award. The clause also provided that failure to show up in the JCCS database would render the offeror ineligible for award and therefore non-responsible.
A company called Sohail Global Group (SGG) was one of 70 companies submitting bids for this effort. Before reviewing bids, the contracting officer checked the JCCS data base and excluded every company not registered. SGG was one of those companies. SGG appealed.
The Corp of Engineers stated that a determination of installation access is a matter if inherent command authority and is not at the discretion of the contracting officer. Thus the contracting officer had no other choice but to find SGG's offer non-responsive. The Comptroller General agreed. Their decision stated:
We recognize that, under these circumstances, the contracting officer's judgment is limited by a military command decision to deny SGG access to a military installation. It is well established that the commanding officer of a military base has wide discretion as to whom he can exclude from the base. Moreover, as the Court of Federal Claims has stated, the requirements of due process vary given the circumstances and, in the environment of a war zone, when the reqired notice would necessarily disclose classified material and could compromise national security, normal due process requirements must give way to national security.You can read the entire GAO decision here.
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