Newt Marine Service (W912ES24B0007)

B-422968 Nov 04, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Dubuque Barge & Fleeting Service Co. d/b/a Newt Marine Service, of Dubuque, Iowa, protests the award of a contract to Legacy Corporation of Illinois, of East Moline, Illinois, under Invitation for Bids (IFB) No. W912ES24B0007, issued by the Department of the Army, Corps of Engineers (Corps) for habitat rehabilitation construction services. The protester contends that the awardee should not have been found responsible. We dismiss the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Newt Marine Service File: B-422968 Date: November 4, 2024 Erin R. Davis, Esq., Taft Stettinius & Hollister LLP, for the protester. Stephen E. Foster, Legacy Corporation of Illinois, for the intervenor. Matthew R. Keiser, Esq., Simon Rutherford, Department of the Army, for the agency. Emily R. O’Hara, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging contracting officer’s affirmative determination of responsibility is dismissed where the allegations do not meet the exceptions that trigger a review under our Bid Protest Regulations. DECISION Dubuque Barge & Fleeting Service Co. d/b/a Newt Marine Service, of Dubuque, Iowa, protests the award of a contract to Legacy Corporation of Illinois, of East Moline, Illinois, under Invitation for Bids (IFB) No. W912ES24B0007, issued by the Department of the Army, Corps of Engineers (Corps) for habitat rehabilitation construction services. The protester contends that the awardee should not have been found responsible. We dismiss the protest. BACKGROUND The agency issued the solicitation under Federal Acquisition Regulation (FAR) part 14 on June 4, 2024, as a small business set-aside for construction services. IFB at 2. Specifically, the agency required construction of various sized and shaped islands within the Mississippi River to support habitat rehabilitation. Id. The solicitation advised that the agency would evaluate bids and award a contract to the responsible bidder whose bid, conforming to the solicitation, would be the most advantageous to the government, considering only price and price-related factors. Id. at 16. The solicitation provided that the agency would determine the responsibility of the apparent low bidder in accordance with FAR subpart 9.1. Id. at 12. With regards to responsibility, the IFB required the apparent low bidder to provide: (a) a detailed description of the work to be self-performed and resources to demonstrate the firm is capable of complying with the limitations on subcontracting; (b) financial statements for the past three years; and (c) a bank certification of financial capability. Id. On September 12, the Corps posted a notice on SAM.gov that award had been made to Legacy Corporation. Protest, exh. D, SAM Notice at 3. Newt Marine subsequently protested to our Office on September 23.[1] DISCUSSION The protester contends that the agency did not review the awardee’s responsibility in accordance with FAR section 9.104, and that the agency failed to consider information about the awardee that raised serious concerns about Legacy’s responsibility. Protest at 6-8, 12. Newt Marine also alleges that the awardee’s low price reflects a lack of understanding of the work to be performed. Id. at 9-11. Prior to the agency report due date, the intervenor requested that our Office dismiss the protest. Intervenor Req. for Dismissal (RFD). The agency joined in the request, asserting that GAO does not have jurisdiction to resolve this protest because the protester challenges an affirmative responsibility determination, which GAO will not review, and that neither of the exceptions to our Bid Protest regulations are applicable to Newt Marine’s protest. Agency Resp. to Intervenor RFD. For the reasons discussed below, we dismiss the protest. Affirmative Determination of Responsibility The FAR provides that a contract may not be awarded unless the contracting officer makes an affirmative determination of responsibility. FAR 9.103(b). As our Office has explained, the affirmative determination that a bidder is capable of performing a contract is largely committed to the contracting officer’s discretion. Great Lakes Dredge & Dock Co., LLC, B-416073, May 24, 2018, 2018 CDP ¶ 194 at 3. Our Office generally will not consider a protest challenging such a determination, except under certain limited exceptions. 4 C.F.R. § 21.5(c); FCi Fed., Inc., B-408558.4, et al., Oct. 20, 2014, 2014 CPD ¶ 308 at 7.