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Protesting Responsibility Determinations Based on JCCS Base Access Eligibility for Africa and Middle East Contracts

The National Defense Authorization Act (NDAA) of 2015 requires procuring agencies to verify that all potential awardees of contracts performed in Africa and the Middle East are eligible for base access. Procuring agencies determine a contractor’s base access eligibility by checking the Joint Contingency Contracting System (JCCS) vendor vetting database. The JCCS allows contractors to view available solicitations for local work in these regions and submit proposals in response. In such solicitations, an offeror’s registration in JCCS and its ability to access the relevant bases, as reflected in the JCCS, are considered definitive responsibility criteria. Such criteria are objective RFP standards, which are included to evaluate offerors’ ability to perform the contract successfully. If an offeror fails to meet these specifically included criteria, it is deemed non-responsible and cannot be awarded the contract. Unsuccessful offerors facing such adverse determinations may file a bid protest challenging their exclusion. However, to sustain such protests, the protestors must demonstrate that the base access ineligibility decision underlying the adverse responsibility determination was made in bad faith or due to erroneous decision-making by the government under its procurement authority. Alternatively, the protestor may show a lack of reasonable basis for the determination.

In B-423061; B-423062; B-423063, a decision issued on December 9, 2024, the Government Accountability Office (GAO) resolved three bid protests by the same protestor alleging that the Army Corps of Engineers (USACE) unreasonably rejected its proposals by deeming it ineligible for base access due to information in JCCS. B-423061 involved an RFP for design-build services for the combat aviation brigade headquarters in Erbil, Iraq, awarded at a total contract price of $1.25 million. B-423062 involved an RFP for design-build services for the vehicle maintenance hardstand building in Erbil and was awarded at a total contract price of $1.1 million. B-423063 involved an RFP for design-build services for an aircraft maintenance hangar also in Erbil, awarded at a total contract price of $2.1 million. Notably, each RFP required offerors to be registered in the JCCS and mandated the procuring agency to verify potential awardees’ base access eligibility. The RFP warned offerors that the agency may verify award eligibility by searching the database using the JCCS company ID number. While the three protests were filed separately, the GAO issued a consolidated decision due to the common issues presented and virtually identical RFPs, agency record, and pleadings in all three protests.

The protestor submitted proposals responding to all three RFPs but was eliminated from consideration for award when the CO reviewed the offerors’ information relevant to base access in the JCCS and found that the protestor was ineligible for base access. Subsequently, even though the protestor could not view the pertinent information, it was notified by the procuring agency that its JCCS account reflected a rating that made it ineligible to receive an award. Following the exclusion decision, the protestor’s ineligibility for base access was also addressed in a debrief. During the debrief, USACE informed the protestor that due to the security requirements imposed to access the Erbil Air Base (EAB) by the Kurdistan Regional Government’s Asayish Security Forces, the RFPs were restricted to vendors on the Asayish list. In the protests that followed, the protestor maintained that it was properly registered and maintained an active status in the JCCS database. Additionally, the protestor argued that since it had provided similar services at the EAB in the past, it could not understand why it was denied base access in this instance. Meanwhile, the agency took the position that the non-responsibility determination due to the protestor’s ineligibility for base access was made in accordance with the terms of the solicitation.

In denying the protests, the GAO agreed with the agency and cited national security concerns. The GAO explained that the information visible only to government personnel underlying a vendor’s vetting rating in the JCCS is classified national security information. Consequently, the agency is not permitted to disclose this information to a vendor. The GAO acknowledged that the non-disclosure requirement meant that the JCCS vendor rating process did not inform the protestor of its base access ineligibility status or afford it an opportunity to present rebuttal evidence. However, traditional due process had to give way to national security concerns in this case because notifying the contractor of its base access ineligibility status in JCCS would necessarily disclose classified material and jeopardize national security. The GAO also noted that although it had conducted an in camera review of classified information to resolve non-responsibility determinations based on base access ineligibility reflected in JCCS in past protests, such a review was not necessary here.

The GAO differentiated those past cases from the present protests by noting that the base access ineligibility determination here was made by U.S. Central Command (CENTCOM) officials pursuant to their military authority and not the procuring agency as part of its procurement authority. Significantly, USACE represented that the base access ineligibility determination was made based on classified data, which it was not even privy to. Considering the procuring agency’s representation and the relevant facts, the GAO found it unnecessary to conduct an in camera review of the classified data underlying the base access ineligibility determinations for the resolution of the protests. Consequently, the GAO denied the protests, finding that it was reasonable for the CO to find the protestor non-responsible in light of the information in JCCS that the protestor could not access the required facilities to perform the contracts due to national security reasons.

The information in the JCCS concerning a vendor’s vetting rating, visible only to government personnel, including the base access ineligibility determination, is considered national security information not disclosable to the vendor. Additionally, since the base access ineligibility decision in JCCS may have been made by military officials relying upon classified national security information, the contractor may be unaware of its base access ineligibility at the time of proposal submission due to lack of advance notice on national security grounds. If the procuring agency then makes a determination of non-responsibility due to the contractor’s base access ineligibility status, that decision is afforded a wide degree of discretion. Furthermore, the GAO may also refuse to conduct an in camera review of classified information supporting the underlying base access ineligibility determination if the determination was made under military authority and the procuring agency represents that it was not privy to the classified military information.

Although it is difficult to ascertain from the protest decision, in part due to the GAO’s decision not to conduct an in camera review of classified information, it may be that the protestor’s JCCS account reflected an adverse base access eligibility rating due to the protestor not being on the Asayish list. In any case, contractors interested in competing under solicitations issued for work being performed on U.S. military bases in Africa and the Middle East should be mindful that the GAO affords the procuring agency a wide degree of discretion when resolving bid protests challenging negative determinations of responsibility based on information in the JCCS, especially if the responsibility determination is based upon classified military information to which the procuring agency is not privy. In such situations, the protestor can typically only successfully challenge the adverse determination of responsibility if it demonstrates bad faith, erroneous decision making, or a lack of reasonable basis for the determination.

This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.

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Companies must meet specific responsibility standards before being awarded U.S. federal contracts. The Federal Acquisition Regulation (FAR) lists prospective contractors’ general and special responsibility standards. FAR 9.103(b) requires contracting officers (CO) to make affirmative determinations of responsibility that are reasonably and factually supported. Disappointed contractors with adequate standing may challenge these determinations through post-award bid protests. Such responsibility determination challenges may be brought to the Court of Federal Claims (COFC) by alleging that the responsibility determination decision lacks a rational basis under the Administrative Procedure Act (APA) or involves a regulatory violation. Alternatively, such challenges may be brought to the Government Accountability Office (GAO) under its bid protest adjudication authority. However, both forums consider responsibility determinations firmly committed to the CO’s discretion, making such protests challenging to sustain. Nevertheless, the GAO will consider bid protests alleging that the CO’s determination of responsibility either unreasonably failed to consider relevant information or that the awardee could not meet the definitive criteria established by the solicitation.

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Government contractors often rely on joint venture (JV) arrangements to meet the requirements of a solicitation. One such arrangement is the "de facto joint venture," where no formal agreement is reached, but the offering entity relies upon the experience of a related U.S. firm that guarantees the offering entity's performance. De facto joint ventures are commonly used in the context of procurements conducted under the Omnibus Diplomatic Security and Antiterrorism Act (Security Act) of 1986, which sets forth the requirements for companies seeking to compete for the construction of U.S. diplomatic facilities. Notably, where adequate competition exists for contracts involving diplomatic construction or design, the Security Act requires that only U.S. persons and “qualified joint venture persons” may submit a bid. Additionally, in its Security Act implementing regulations, the DOS permits offerors to rely on de facto JVs to meet the requirements of the Security Act. Therefore, depending on the terms of the solicitation, the de facto JV may provide potential contractors an additional avenue to demonstrate responsibility or meet past performance requirements by leveraging the resources and experience of related U.S. entities. However, since the de facto JV is not a separately registered entity, issues may arise when the de facto JV must meet specific qualification requirements, such as having an active registration in the System of Award Management (SAM).

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When evaluating quotations or proposals, government agencies must rely solely on the evaluation criteria stated in the solicitation. That is, once the procuring agency informs prospective contractors of the criteria against which it will evaluate the proposals, the agency must adhere to the stated criteria. Furthermore, once the evaluation criteria are established, agencies are prohibited from giving importance to specific factors, subfactors, or other criteria beyond which prospective offerors would reasonably expect. Under Federal Acquisition Regulation (FAR) § 11.104, when conducting brand name or equal procurements, the procuring agency’s purchase description must include a general description of those “salient” physical, functional, or performance characteristics of the brand name item that an “equal” item must meet to be acceptable to receive an award. The FAR further instructs agencies to use brand name or equal descriptions when the salient characteristics are firm requirements. Therefore, quotations proposing “equal” items must be evaluated to ensure the offered items meet the stated salient characteristics of the brand name item. Consequently, the government’s evaluation of quotations may be protested for being improperly based on unstated evaluation criteria when the government fails to convey all the characteristics of the brand name item it considers “salient.”

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Protests alleging the government’s violation of the Competition in Contracting Act’s (CICA) full and open competition mandate may be styled in various forms, with allegations of improper competition restrictions varying depending on the specific circumstances of the procurement. Despite this, to be successful, the protestor’s allegations must always be factually and legally sufficient. Protestors may face difficulties providing a sound factual or legal basis for their protests when challenging the classified status of a procurement, especially when they do not have access to the solicitation. Bid protest adjudicative forums, such as the Government Accountability Office (GAO), will typically dismiss protests lacking such support by citing speculation, factual inaccuracies, or flawed legal assumptions. Notably, when rejecting such protests, the GAO does not require the government to submit an agency report, further disincentivizing protestors from filing such protests.

In B-422653, a decision issued on August 6, 2024, the GAO dismissed such a bid protest for failing to state a valid legal or factual basis. The protest challenged the “classified” status of a request for proposal (RFP) issued by the Department of Energy (DOE) for the procurement of intelligence and counterintelligence services. The protestor, a service-disabled veteran-owned small business (SDVOSB), essentially asserted that the DOE’s issuance of a classified RFP for the subject procurement made it unduly restrictive of competition. The protestor discovered the existence of the classified solicitation when it came across the name of its RFP on a National Reconnaissance Office (NRO) website. Since the RFP was only available by accessing the NRO’s Joint Worldwide Intelligence Communication System (JWICS), the protestor emailed the NRO to request an unclassified version of the RFP. Since JWICS is a secure intranet system that hosts classified information, accessing JWICS requires a sensitive compartmented information facility (SCIF), which the protestor did not possess. When the agency refused to provide the sanitized version of the RFP, the protestor filed a protest with the GAO, alleging a lack of full and open competition in violation of CICA.

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Protesting Responsibility Determinations Based on JCCS Base Access Eligibility for Africa and Middle East Contracts

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