Friday, January 18, 2019

Certificate of Competency - How it Works in Practice

Yesterday we discussed SBA's Certificate of Competency (COC) process which provides small businesses to receive a second look when a contracting officer has excluded them from consideration on a procurement because the company could not satisfy certain evaluation criteria to prove their capability to perform a Government contract. Today we want to illustrate how that works in practice by examining a recent GAO (Government Accountability Office) bid protest decision where a company was restored to "competency" as the result of the SBA review. If you missed yesterday's post, click here to read it.

In 2018, the EPA (Environmental Protection Agency) issued a solicitation for soil remediation at a Superfund site. The solicitation stated that award would be based on a lowest-priced, technically acceptable (LPTA) basis, based on two non-price factors: technical capability and past performance. The technical capability factor consisted of three sub-factors: corporate experience, key personnel, and project management plan. The corporate experience and key personnel sub-factors set forth various minimum requirements: five years of residential earth-moving experience and for project manager, at least five years experience as a project manager in environmental hazardous substance or hazardous waste.

The EPA received ten bids including one from Eagle Eye. However, an EPA technical evaluation panel found deficiencies in Eagle Eye's proposal under both the corporate experience and key personnel sub-factors. Specifically, the evaluators determined that Eagle Eye did not meet the minimum corporate experience requirements, and that its project manager and site superintendent did not meet the minimum key personnel experience requirements. Accordingly, the panel concluded that Eagle Eye's proposal was technically unacceptable.

Thereafter, the EPA referred its determination to the SBA under its COC procedures. The SBA didn't agree with the EPA and issued a COC for Eagle Eye, indicating that the firm was considered responsible to performed the proposed procurements. In its determination, the SBA found that Eagle Eye's COC application included information demonstrating that the offeror met the solicitations corporate experience and key personnel requirements, even if that information was not part of Eagle Eye's proposal.

After the COC determination, the EPA found Eagle Eye's proposal to be the lowest-price, technically acceptable offer and awarded the contract to Eagle Eye.

One of the other offeror's protested the award on the basis that the EPA should not have asked SBA for a competency determination. That protest was denied.

Read the full GAO protest decision here.

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