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.

Certificate of Competency

Small businesses that have been excluded from consideration on a procurement because they did not meet certain specified evaluation criteria (such as past performance) may have be able to have the Government take a second look at a contracting officer's determination.

Under the Small Business Administration's (SBA) Certificate of Competency (COC) program, contracting officers must refer to the SBA a determination that a small business is not responsible, if that determination would preclude the small business from receiving an award (see FAR 19.6). Additionally, the SBA's regulations specifically require a contracting officer to refer a small business concern to SBA for a COC determination when the contracting officer has refused 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. 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).

Once the referral is made to the SBA by a contracting officer, SBA will notify the (prospective) vendor accordingly and offer them the opportunity to submit a COC application. If the vendor chooses to submit a COC application, SBA will perform an independent review of the application (including review of any additional information that was not requested but which the vendor considers pertinent to the determination) and make a determination.

The Small Business Act gives the SBA the conclusive authority to review a contracting officer's determination that a small business concern is not responsible. If the SBA refuses to issue a COC, it is unlikely that the GAO will review the SBA determination unless there is shown to be possible bad faith on the part of Government officials or that SBA failed to follow its own published regulations or failed to consider vital information bearing on the firm's responsibility due to the manner in which the information was presented to or withheld from the SBA by the contracting officer.