United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: EOD Technology, Inc.

File: B-406978.2; B-406978.3

Date: August 20, 2012

DECISION

EOD Technology, Inc., of Lenoir, Tennessee, protests the corrective action taken by 

the Department of the Army under request for proposals (RFP) No. W91B4L-12-R0189 for security services in Afghanistan. EOD argues that the Army improperly 

determined that EOD was nonresponsible, and permitted the awardee, Olive Group, 

of Dubai, United Arab Emirates, to begin performing the contract.

We dismiss the protest.

The RFP, issued on June 7, 2012, provided for award of a fixed-price contract for 

security services at Forward Operating Base Lindsey, Afghanistan, for a 7-month 

base period and two 3-month option periods. Protest at 5. Offerors were informed

that award would be made to the offeror providing the lowest-priced, technically 

acceptable offer. Proposals were evaluated on a pass-fail basis for technical 

capability, pricing, eligibility requirements, and past performance. Id. at 6-7. As 

relevant here, under the eligibility requirements evaluation factor, offerors were 

required to be affirmatively determined to be responsible in accordance with the 

standards of Federal Acquisition Regulation (FAR) Part 9 and the solicitation.

The Army received seven proposals, and in June awarded the contract to Olive 

Group. EOD received a written debriefing that informed the firm that, although 

EOD’s proposal was otherwise technically acceptable and offered the lowest price, 

it was determined to be not responsible. Id. at 10. 

On July 5, EOD protested to our Office challenging the award to Olive Group and 

requesting that the Army suspend contract performance in accordance with the 

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.
Page 2 B-406978.2, B-406978.3 

Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § 3553(c) (2006).1

 On 

July 13, the Army advised our Office that it would reevaluate EOD’s responsibility 

and eligibility for award, and that, if the reevaluation results in a determination that 

EOD is eligible for award, the Army would “proceed accordingly.” In light of the 

Army’s proposed corrective action, we dismissed EOD’s protest as academic on 

July 16.

On July 25, EOD learned that the Army had authorized Olive Group to begin 

transitioning activities for contract performance, and was informed that EOD should 

have received official notice that it had again been found nonresponsible. Protest 

at 11. On July 31, EOD again protested to our Office objecting to the 

nonresponsibility determination, as well as the Army’s implementation of the 

corrective action and authorization for Olive Group to perform the contract. On 

August 4, the Army requested that EOD respond to specific concerns raised about 

EOD’s responsibility. On August 14, EOD filed a supplemental protest, arguing that 

the agency improperly re-awarded the contract to Olive Group and/or authorized 

contract performance before completing its reevaluation of OED’s responsibility.

The Army requests that we dismiss EOD’s protest as premature, stating that the 

agency has not yet completed its reevaluation of EOD’s responsibility. With respect 

to Olive Group’s performance of the contract, the Army contends that the agency 

was not required to continue to suspend contract performance because the CICA 

stay expired when GAO dismissed its protest. The Army also explains that it began 

to transition the contract to Olive Group in order to avoid a lapse of services.

We agree with the Army that where, as here, the agency has not yet made a new 

finding concerning EOD’s responsibility, EOD’s protest of the agency’s 

nonresponsibility determination is premature.2

 See e.g., Del-Jen Educ. & Training 

Group, B-401787.3, May 4, 2010, 2010 CPD ¶ 110 at 3 n.2; PRC Inc.

 1 CICA provides, subject to certain exceptions, that performance of a contract must 

be suspended if the agency receives notice of a protest within 10 days of contract 

award or within 5 days of a required debriefing, and while the protest is pending. 

31 U.S.C. §§ 3553(d)(3), (4).

, B-233561.8, 

2 We expect the agency to act with reasonable efficiency in determining whether 

EOD is responsible. An agency’s mere promise of corrective action, without 

reasonably prompt implementation, circumvents the goal of the bid protest system 

established by CICA--that is, the economic and expeditious resolution of bid 

protests. Commercial Energies, Inc.--Recon. & Costs, B-243718.2, Dec. 3, 1991, 

91-2 CPD ¶ 499 at 6. In this regard, a protest is not resolved where the agency 

does not timely implement the promised corrective action that caused us to dismiss 

the protest. Pemco Aeroplex, Inc.--Recon. & Costs, B-275587.5, B-275587.6, 

Oct. 14, 1997, 97-2 CPD ¶ 102 at 7.
Page 3 B-406978.2, B-406978.3 

B-233561.9, Sept. 29, 1992, 92-2 CPD ¶ 215 at 4-5. In the event that the Army 

concludes that EOD is nonresponsible, the protester may re-file its protest, subject 

to our timeliness rules. 

With respect to EOD’s argument that FAR § 9.105-2(a) requires the Army to 

complete its determination of EOD’s responsibility before awarding the contract to 

Olive Group or authorizing performance, this section indeed requires that “[w]hen an 

offer on which an award would otherwise be made is rejected because the 

prospective contractor is found to be nonresponsible, the contracting officer shall 

make . . . a determination of responsibility, which shall state the basis for the 

determination.” Here, the contracting officer in fact found EOD to be 

nonresponsible prior to awarding the contract to Olive Group. Although the Army’s 

corrective action involves a reevaluation of EOD’s responsibility, this does not 

implicate the agency’s compliance with FAR § 9.105-2(a) prior to awarding the 

contract to Olive Group.

The protest is dismissed.

Lynn H. Gibson

General Counsel