How to Tell the Difference Between Responsiveness and Responsibility

Protesters often confuse responsiveness with responsibility. Responsiveness concerns the commitment to provide the required services and must be satisfied on the face of the bid. Responsibility relates to capability to perform and can be satisfied at any point prior to award. Here, the protester argued the awardee’s bid was non-responsive because it did not satisfy certain express responsibility requirements. But GAO reasoned that these were “responsibility” requirements and thus did not need to be satisfied on the face of the bid.

J.E. McAmis, Inc., GAO B-420518, B-420518.2

Background

The Army Corps of Engineers issued an invitation for bids (IFB) seeking repairs on a jetty. The IFB contained a section that set forth special standards for responsibility. As part of this, bidders had to demonstrate they had completed a heavy marine construction project.

Two firms, J.E. McAmis and Trade West Construction, submitted bids. Trade West submitted the lowest bid, but the Corps concluded that Trade West did not satisfy the special responsibility standards. Nevertheless, because Trade West was a small business, the Corps referred the matter to the SBA under the certificate of competency procedures.

The SBA issued a certificate of competency, determining that Trade West had overcome the non-responsibility issues. The Army awarded the contract to Trade West. McAmis protested.

Legal Analysis

Responsiveness v. Responsibility

McAmis contended the Corps should have found Trade West’s bid non-responsive because it did not include information addressing the special standards of responsibility. But GAO found that McAmis was confusing responsiveness with responsibility. Responsiveness concerns a bidder’s commitment to provide the required goods services. Responsiveness is determined from the face of the bid. Responsibility concerns a bidder’s capability to perform a contract. Information relating to responsibility may be proved at any time prior to contract award. Here, the IFB set forth special standards of “responsibility.” Information satisfying these standards could thus be provided after the bid.

Certificate of Competency

McAmis alleged the SBA erred in awarding a certificate of competency because Trade West, rather than the  agency, provided the information the SBA considered. GAO didn’t find this persuasive. The manner in which the information was provided to SBA was not important, and McAmis had not established that the information the SBA considered was inaccurate.

J.E. McAmis is represented by Page B. Spratt of Schwabe, Williamson & Wyatt P.C. The intervenor, Trade West, is represented by LOchlin B. Samples, Garrett E. Miller, and Karl Dix, Jr. of Smith, Currie & Hancock LLP. The agency is represented by Deena G. Braunstein and Nathaniel S. Canfield of the Army. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

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