Note here that the COC focus is on a firm's ability to perform. The contracting officer might be concerned about the firm's technical expertise, its financial capability, or its capacity. Whatever the responsibility related concern might be, the small business has the right to appeal a contracting officer's determination.
A recent bid protest decision illustrates the difference between being responsible and not complying with the requirements of a solicitation.
Sea Box, a small business, protested the award of a contract to a competitor under a RFP (Request for Proposal) issued by GSA (General Services Administration) for relocatable simulator shelters (RSS) for the Air Force. GSA considered Sea Box's proposal to be unacceptable. Sea Box argued that GSA was required to refer its unacceptable proposal to the SBA (Small Business Administration) because the basis for eliminating Sea Box's bid from competition was related to responsibility.
The solicitation contained two pass/fail criteria. One of those criterion specified that GSA would reject any proposal that did not include a statement confirming that the RSS solution had been rated to operate at a secret classification level in accordance with characteristics specified in the solicitation. In order to demonstrate that they met the criterion, bidders were required to submit documentation that demonstrated in writing how the offerors' solution complied with the standards and documentation that demonstrated that its product had been previously certified/accredited by a Government security agency.
After reviewing Sea Box's proposal, the contracting officer determined that it failed to satisfy the pass/fail requirement because Sea Box did not submit a statement that confirmed its solution had been rated to operate at a secret classification level. As a result, GSA did not give further consideration to Sea Box's proposal.
Sea Box protested arguing that GSA eliminated its proposal from consideration based on a responsibility-related criteria, such that its unacceptable proposal should have been referred to the SBA. GSA argued that its rejection of Sea Box's proposal was not based on Sea Box's responsibility, but was instead based on whether Sea Box's product met the requirements of the solicitation.
The Comptroller General (CG) agreed with GSA finding that Sea Box did indeed fail to provide the required certification. As for Sea Box's contention that GSA was required to refer the proposal to SBA, the CG disagreed.
Where an agency finds the proposal of a small business to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of non-responsibility, meaning that referral to the SBA, which has the ultimate authority to determine the responsibility of small business concerns, is required. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility, however, referral to the SBA is not required. Likewise, where an agency rejects a proposal as technically unacceptable on the basis of a factor that is arguably responsibility related, but the finding of unacceptability is based on the offer's failure to submit specific documentation required by the solicitous, referral to the SBA is not required.You can read the entire GAO decision here.