On further review, contracting officers should make the call

Bob Little

The General Accounting Office is considering whether to get into the business of managing, rather than deciding the propriety of, the award of federal contracts.

In a recent notice of proposed rule-making, GAO solicited comments on whether it should more actively review affirmative determinations of responsibility made by contracting officers. In a determination of responsibility, an agency's contracting officer must decide whether the prospective contractor has the wherewithal to carry out a contract'that is, that the contractor meets standards of responsibility.

Traditionally, reviews of contracting officers' determinations have been made only when there was evidence of bad faith, such as fraud, on the part of the contracting officer.

Ostensibly, this revisit to GAO's policy'of more than 25 years'against more in-depth reviews was based on the Court of Appeals for the Federal Circuit's opinion in Impreza Consstruzzioni Geom. Domenico Garufi v. U.S., 238 F.3rd 1324, Fed. Cir. 2001.

In that case, the court held that the trial court must determine whether a contracting officer considered enough information to support an affirmative determination of responsibility.
While it may seem innocuous on its face'what possible difference could it make what standard of review is applied?'the consequences could be rather severe.

Responsibility determinations are predictions about a particular contractor's ability to perform successfully.

And who better to make that prediction than the contracting agency, the very entity that would be most affected by poor performance? That has been the announced reason for not doing more thorough reviews. But I don't think that was the real reason.

The real reason is that responsibility determinations are simply not manageable'they're judgement calls. They depend on when, and by whom, they are made, and on a company's circumstances at a particular time. Because of that, no court could find that a proposed contractor actually lacked responsibility'which is what protesters want them to say.

A determination is literally a moving target. Appellate courts tend to review sitting ducks called the administrative record, in which the facts do not change. But this duck is always flying. The most any reviewer or appellate court could say is whether there was enough information to make an informed prediction.

Say the court, as in Garufi, decides that the information is insufficient. Does the protester win? No'at least not then, because the determination can't be based on old facts. It becomes a new case with new facts; in sports parlance, they have to replay the down. And if the contracting officer doesn't consider new information, the proposed awardee would have grounds for a new protest. Ad infinitum.

In the days before protective orders, the new information might not have been apparent to a protester. Today, lawyers for a protester watch the process from a front-row seat with access to the proposed awardee's proprietary information. They have an adversarial point of view and ready access to the GAO or the courts if they don't like a decision. And they are paid not to like any decision that's not in their favor.

This is not a good idea.

Bob Little, an attorney who has worked for the General Accounting Office and a Washington law firm, teaches federal contract law. E-mail him at rlittle13@aol.com.

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