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Posted on Wednesday, April 18, 2018

Were Security Clearances Needed at Time of Award or Start of Work?

With security clearances being such an important requirement of winning a Defense Department contract, contractors need to know some unique protest rules dealing with a contracting officer’s “responsibility” determinations.

An Army solicitation required the winning contractor’s employees to “have and maintain a current SECRET clearance prior to and during employment,” and that certain employees doing specific described tasks “shall be trained and certified prior to contract award.” The incumbent contractor already had the required security clearances so, when it lost, it protested, arguing that the winner could not get the required security clearances before award and therefore could not satisfy what the protester claimed were definitive responsibility criteria.

GAO denied the protest. Whether a bidder meets a solicitation’s security clearance requirements is a “responsibility” issue because it concerns the firm’s ability to perform. Generally, it is difficult to get the GAO to review an agency’s decision that the winning company is responsible. GAO’s own rules list affirmative determinations of responsibility as one of the protest issues that it generally will not consider. 13 C.F.R. §21.5(c).

One exception is that GAO will review a protest claiming that a winning contractor did not meet a solicitation’s “definitive responsibility criteria” which establish “specific and objective standards designed to measure a prospective contractor’s ability to perform the contract.” GAO, however, will not consider a requirement to obtain a security clearance to be a definitive responsibility criterion “where the solicitation does not require the clearance to be obtained prior to award.”

In this case, GAO did not find the security clearance requirements to be a definitive responsibility criteria, because the Army’s solicitation did not require the clearance to be obtained prior to award. In fact, the solicitation “was notably silent” on when an offeror had to meet the solicitation’s security clearance requirements. Nor did the solicitation “require offerors to submit documentation with their proposals demonstrating that they would have such clearances in place at the time of award. In the absence of a specific and objective RFP requirement for personnel security clearances to be obtained prior to award, we conclude that the solicitation did not contain any such definitive responsibility criterion.”

The decision shows the complexity of the “responsibility” rules. These rules become even more complex because an agency finding a small business offeror to be non-responsible requires the SBA to have the final decision on responsibility under its “Certificate of Competency” process.

The Government Contracts team at Berenzweig Leonard can help contractors navigate these issues in a cost-effective manner.

A-B Computer Solutions, Inc., B-415819 (Mar. 22, 2018).

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the March 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here.

Terry O’Connor is a Partner at Berenzweig Leonard, LLP. Terry and Stephanie Wilson lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.