A recent Government Accountability Office decision, Tessa Structures, LLC, B-298835, highlights the difference between responsiveness and responsibility determinations and the obligation of an agency to refer responsibility determinations to the Small Business Administration (SBA). The protestor, a small business, responded to a Federal Highway Administration solicitation seeking bids for bridge painting. As part of its bid, each prospective contractor was required to state the number of days of performance, not to exceed 305 days. The protestor, Tessa Structures, submitted the low bid and stated that it would perform in 120 days.
The FHWA reviewed Tessa’s bid and requested that Tessa explain how it would perform in 120 days. Tessa advised the FHWA that it planned to begin at the end of August and complete before Christmas; significantly, as discussed below, Tessa did not include its assumption that it would receive notice to proceed by August 28 with its bid. The FHWA believed that Tessa’s plan to begin at the end of August was contrary to the solicitation because the agency reserved the right to issue a notice to proceed as late as October 24th. The FHWA rejected Tessa’s bid as non-responsive, based upon Tessa’s 120 day performance period and its assumption regarding the notice to proceed, without seeking any input from the SBA.
The GAO determined that Tessa’s bid with a 120 day planned performance period was improperly rejected by the FHWA because the issue of performing within a set period of time was a matter of responsibility, not responsiveness. The GAO found that because the solicitation specified only a maximum performance period, (305 days) and no minimum period, Tessa could properly bid to perform in a shorter period. Furthermore, Tessa did not insert anything in its bid that restricted or qualified its performance in contravention of the solicitation. Of particular importance to the GAO was the fact that Tessa did not insert its assumption about the issuance of the notice to proceed in its bid, and, therefore, did not contravene the solicitation’s notice to proceed requirements. Had Tessa provided these assumptions in its bid, it most likely would have been found non-responsive.
Upon the GAO’s determination that performance within the 120 days was not a matter of responsiveness, the GAO went on to state that “ the agency’s finding that Tessa could not perform within the number of days specified in its bid constituted a determination of nonresponsibility. Therefore, it necessarily followed that the agency was required to refer the determination of Tessa’s responsibility to the SBA. (FAR 19.6, 13 CFR 121) .
There is a fine line between responsiveness and responsibility. As the GAO stated in its decision, if the solicitation had required the bidders to submit a “practicable” construction schedule with their bids instead of inserting the number of days of performance, the outcome may have been different. In that case, the acceptance of the bid would have turned on whether the agency believed that the 120 period was “practicable.” Such a determination would have been a matter of responsiveness, not responsibility.