Procuring agencies must make an affirmative determination of contractor responsibility before awarding federal contracts. While a responsibility determination is necessary for all successful offerors, a non-responsibility determination that precludes a small business from receiving an award must be referred to the Small Business Administration (SBA). Specifically, SBA regulations require contracting officers (COs) to refer to the SBA for a Certificate of Competency (COC) determination, all small businesses deemed ineligible for award on a non-comparative basis under a responsibility-related factor, such as past performance or key personnel qualifications. In this regard, non-comparative responsibility factors are evaluated on a pass/fail, go/no-go, acceptable/non-acceptable or another similar basis. Once the referral is made, the SBA informs the small business of the non-responsibility determination and offers it the opportunity to apply for a COC. The SBA then typically reviews COC applications within 15 days. If an agency improperly fails to refer a small business for a COC determination, the small business may file a bid protest at the Government Accountability Office (GAO), alleging violation of the SBA’s COC procedures.

The bid protest regulations of the Government Accountability Office (GAO) contain timeliness requirements that demand strict adherence by protesters. In cases where a protester first files an agency-level protest, any subsequent protest at the GAO must be filed within 10 calendar days of actual or constructive knowledge of the initial adverse agency action. In this regard, an adverse agency action refers to any action or inaction by the procuring agency that is prejudicial to the position taken by the protester in its agency-level protest. Notably, such an adverse action includes the opening of bids or the receipt of proposals. Therefore, when protesters file agency-level protests challenging the terms of a solicitation, and the agency does not take any corrective action or extend the date of proposal receipt, the passing of the date of proposal receipt is considered adverse to the protester and starts the 10-day clock for filing a GAO protest. In such cases, if the protester waits for the agency’s decision on the agency-level protest to file its GAO protest and more than 10 calendar days pass after the date of receipt of proposals, the protest is considered untimely under GAO rules.

The Competition in Contracting Act (CICA) requires full and open competition in federal procurement unless one of the limited exceptions enumerated in the Federal Acquisition Regulation (FAR) part 6 applies. Meanwhile, the General Services Administration (GSA) Federal Supply Schedule (FSS) program provides the government with a streamlined process for acquiring commonly used commercial supplies and services. These simplified procedures notwithstanding, CICA’s competition mandate applies to procurements conducted under the FSS program. In this regard, the Government Accountability Office (GAO) has previously held that following the streamlined FSS procedures satisfies CICA’s competition requirements. It follows that when conflicting interpretations of a regulation governing competition in the FSS program are advanced, the interpretation consistent with the principles of CICA should prevail. One such long-recognized CICA principle provides that when concerns of administrative convenience or expediency are being weighed against ensuring full and open competition, the latter should be favored. Stated another way, mere administrative convenience or expediency should not provide a valid basis for restricting competition.