Newt Marine Service (B-422968)

Category: Responsibility determination

Date: November 4, 2024

URL: https://www.gao.gov/products/b-422968

You should not care.

In Newt Marine Service, GAO denied a protest challenging an agency’s award decision for habitat rehabilitation services, where the protester argued the agency ignored the awardee’s poor performance on unrelated contracts. The protester claimed this omission violated FAR 9.104’s standards for contractor responsibility. GAO maintained its position that it would only review an agency’s affirmative responsibility determination if a solicitation contained definitive criteria that were unmet or if serious concerns were unreasonably disregarded by the contracting officer (KO).

GAO found no violation of definitive responsibility criteria because the solicitation referenced only a general review under FAR subpart 9.1 without requiring specific performance thresholds. Additionally, GAO determined that the awardee’s poor performance on separate contracts, including an SBA refusal to issue a certificate of competency, did not constitute “serious concerns” warranting further review. The decision upheld the agency’s authority to determine contractor responsibility, absent clear solicitation criteria or compelling performance issues that directly affected the award.

Representatives from Taft Stettinius & Hollister LLP, Legacy Corporation of Illinois, and the Army participated, with GAO attorneys Emily R. O’Hara and Peter H. Tran involved in the decision.

This decision reiterates GAO’s reluctance to review affirmative responsibility determinations absent strong evidence of negligence in assessing contractor reliability, especially where general responsibility standards are in question.

Digest

Protest challenging contracting officer’s affirmative determination of responsibility is dismissed where the allegations do not meet the exceptions that trigger a review under our Bid Protest Regulations.