The most basic requirement to be considered for the award of a government contract is to submit a responsive offer and be a responsible offeror. Being responsive to the solicitation is relatively straightforward, provided that there are no ambiguities in the solicitation, but what it means to be responsible is much more nebulous.

Protesting contractor: B&B Medical Services Inc., of Oklahoma City

Contracting agency: Department of Veterans Affairs

Protest issue: What defines responsible offeror

Decision: Denied by the Government Accountability Office June 24, 2013

Post-mortem: The VA issued a request for proposals to provide home oxygen services. The VA received nine proposals and eventually awarded the contract to Rotech Healthcare Inc. of Orlando, Fla., based on the fact that Rotech offered a slightly lower price.

B&B protested on several grounds, but its most relevant argument was that Rotech was not a responsible offeror. Responsibility is defined in Federal Acquisition Regulation as having “adequate financial resources to perform the contract, or the ability to obtain them… and a satisfactory record of integrity and business ethics.” While this seems fairly simple, as with most things in the FAR, it is left to the discretion of the contracting officer to determine what “adequate” and “satisfactory” really mean.

In this case, the contracting officer was concerned about Rotech’s capability of performing the contract and did additional research. According to the company’s Dun & Bradstreet supplier qualifier report, Rotech was given the worst rating for how it served suppliers, in part because of “high proportion of past due balances to total amount owing.” Nonetheless, after looking at several other factors, the contracting officer determined that Rotech was a responsible offeror. The GAO agreed with the VA that they had followed relevant law and denied B&B’s protest.

The GAO stated that “because the determination that an offeror is capable of performing a contract is largely committed to the contracting officer’s discretion, our Office will generally not consider a protest challenging such a determination.” The only time the GAO will consider responsibility is where there was evidence that raised serious concern, which was ignored by the contracting officer.

This is one of the most frustrating situations for a contractor, to believe that a competitor represents a significant risk of performance, but wins the work anyway. But unless evidence was ignored, a protest will rarely be sustained.