Now, this ruling is a real mind-boggler

Bob Little

In a recent column, I opined that the General Accounting Office should not get into the business of managing responsibility determinations primarily because such matters are moving targets. I theorized that the best that GAO'or a court for that matter'could ever do would be to remand the matter to the contracting officer to make an up-to-date determination on the best information available.

Little did I know that the case that had piqued GAO's interest, Impresa Construzioni Geom. Domenico Garufi v. U.S., would show just how bad a predictor I could be.

The case involves a contract for maintenance and janitorial services at a naval base in Italy. By early 1999, Garufi'a would-be contractor that had been eliminated from the competition'had filed at least five bid protests, including reconsideration motions, to GAO. Its protests were based on challenging the contracting officer's responsibility determination, which is essentially a prediction of a bidder's ability to successfully complete the contract.

Garufi alleged that it shouldn't have been kicked out of the competition and the eventual awardee was a crook. It lost each time for various reasons.

More important, the awardee started performance on the contract. Undaunted, Garufi went to the Court of Federal Claims'and lost again on the same issues.

Undaunted, Garufi appealed again. The Federal Circuit agreed that Garufi had properly been kicked out of the competition but allowed Garufi to pursue the awardee-is-a-crook allegation.

The Federal Circuit apparently believed that a responsibility determination made with insufficient information would result in a totally void procurement process and require starting over someday. It remanded the case to the Court of Federal Claims and required the contracting officer to be deposed to determine what kind of information he had considered.

The decision to remand was in January of last year, the deposition happened some months later. Meanwhile, the alleged crook still performed because 'someday' hadn't arrived yet.

The matter finally was decided on May 3. The court decided that there was indeed insufficient information about the awardee's integrity to support a responsibility determination. But someday still hadn't arrived.

On July 11, as the alleged crook continued to perform, the court ordered the government not to exercise any option on the contract, which runs until Sept. 30.

Up until now, the case almost makes sense. The Federal Circuit Court in effect held that when a protester sufficiently shows an awardee's lack of integrity, the government ought to explain how it found that the awardee has the requisite integrity. Never mind that this had not been the rule for over 25 years.

What actually happened is going to keep legal scholars and courts in turmoil for years. The court ordered the government to continue the contract until Feb. 16. And the court did not order the government to make a fully informed responsibility determination. Anybody want to guess why?

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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