In the latest Weekly Wright Report:

• • Another Bite At The Apple For Small Businesses – read now

Another Bite At The Apple For Small Businesses

By Michael A. Stover

If you are a certified small business by the Small Business Administration (SBA), you might be eligible for another bite at the apple in bid determinations.  When bids are submitted, the government initially determines whether the bid is responsive and whether the bidder is responsible.  Responsiveness concerns a bidder’s commitment to provide the required goods or services and must be determined by the procuring agency from the face of the bid at bid opening.  A nonresponsive bid may not be accepted.

In contrast, responsibility relates to a bidder’s capability to perform the contract.  With respect to small businesses, the Small Business Act identifies the elements of responsibility as “including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity,”  15 U.S.C. §637(b)(7)(A) (2006).  Further, in some instances an agency will include in a solicitation a special standard of responsibility, which is often referred to as a definitive responsibility criterion. Such criteria are specific and objective standards established by an agency as a precondition to award, which are designed to measure a prospective contractor’s ability to perform the contract. See Federal Acquisition Regulation (FAR) § 9.104-2.

Under the Small Business Act, the SBA has conclusive authority to determine the responsibility of small business concerns.  15 U.S.C. §637(b)(7)(A).  In this regard, when a procuring agency finds that a small business is not eligible for award based on a nonresponsibility determination or a failure to satisfy definitive responsibility criteria, the procuring agency is required to refer the matter to the SBA for a final determination under its Certificate of Competency (COC) procedures.  FAR §§19.602–1(a)(2),19.602–4(b).  The SBA has the statutory authority to review an agency’s negative determination of responsibility and to finally determine the small business concern’s responsibility by issuing or refusing to issue a COC.

Therefore, as a certified small business if you find yourself in a situation where the contracting officer has rejected your bid based on a determination that you are not responsible, you may be able to demand that the issue be referred to the SBA for a final determination.  If you need help with nonresponsibility determination, contact any of our lawyers in the Government Contracts Practice Group.

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