Ga. Comp. R. & Regs. R. 665-2-11-.12 - Offeror Responsibility

(a) Policy. Purchases shall be made from, and contracts shall be awarded to responsible offerors in accordance with O.C.G.A. § 50-25-7.3(a)(6). Because it is important that the State strive for best value, an award to an offeror is not required solely because that offeror submits the lowest offer. As used throughout these Rules, the term "offeror" refers to any entity that may respond to an Invitation for Bids, Request for Proposals, or any other procurement solicitation document, by whatever name it is called.

(b) General Standards.

1. A responsible offeror is one that GTA believes has the capability in all respects to perform fully the contract requirements and the business integrity to justify a public contract award.

2. Responsibility shall be generally presumed.

3. GTA may base its belief that an Offeror is responsible on responses provided on the offeror's "Statement of Responsibility Certification Form" (where such a form is used) and/or based on an offeror's responses to the requirements of the solicitation document.

4. In order for an offeror to be deemed non-responsible, the contracting officer must make an affirmative determination of non-responsibility.

5. GTA shall have the right to conduct investigations and other forms of due diligence into any offeror's (or potential offeror's) responsibility status at any time and for any reason. Such due diligence may include investigations into one or more of the following areas listed in Rule 665-2-11-.12(b)6 below.

6. Areas affecting an offeror's responsibility may include, but are not necessarily limited to one or more of the following criteria:

(i) adequacy of financial resources. This may include, but is not limited to, the ability to obtain required bonds and insurance from sureties and insurance companies authorized to do business in Georgia.

(ii) satisfactory ability to comply with the contract requirements, considering the firm's other business obligations.

(iii) satisfactory accounting and auditing procedures.

(iv) satisfactory technical qualifications.

(v) satisfactory experience;

(vi) adequacy of the organization, material, equipment, facilities and personnel resources and expertise necessary to carry out the work and meet required delivery or performance schedules;

(vii) whether offeror is presently debarred or suspended from bidding or proposing by any governmental entity;

(viii) whether offeror is presently proposed for debarment or suspension from bidding or proposing by any governmental entity;

(ix) Whether offeror has within a three year period preceding the present procurement been convicted of, or had a civil judgment rendered against them for, commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

(x) Whether offeror is presently indicted for or otherwise criminally or civilly charged by a governmental entity with commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property.

(xi) Whether offeror has had a contract terminated for default in the last 3 years.

(xii) Whether offeror is currently under investigation for any possible breach of contract, or fraud or allegations of criminal activity related to the types of Services requested within the subject procurement.

(xiii) satisfactory record of performance.

(xiv) Whether offeror has a satisfactory record of integrity and business ethics in any public or private procurement.

7. Failure of a firm to provide relevant information specifically requested by the Contracting Officer may be grounds for a determination of non-responsibility.

(c) Special Standards

1. When it is necessary for a particular contract or class of contracts, the Contracting Officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that certain minimum experience or specialized facilities are needed for adequate contract performance.

2. The special standards shall be set forth in the solicitation and shall apply to all offerors.

(d) Statement of Responsibility Certification Form

1. GTA may create one or more certification forms, known as "Statement of Responsibility Certification Forms," to facilitate responsibility determinations. The contents of such forms may be changed from time to time by GTA procurement staff, but must always be consistent with this Rule 665-2-11-.12. Rule 665-2-11-.12 shall control in the event of any conflict between the contents of such certification forms and the Rule.

2. Obligation to File Certification Form. Where a solicitation document requires the submission of a certification form, offerors are obligated to complete and file such certification form at the time specified, and in the absence of a specific deadline, with submission of offeror's bid/proposal. Offerors are further obligated to provide updates to any information submitted, if the responses change at any time prior to contract award.

3. Subcontractors. Where appropriate, GTA may require that an offeror's subcontractors complete and submit Statement of Responsibility Certification Forms as pre-condition to contract award. In such cases, GTA may require offerors to notify their subcontractors of their obligation to complete and file a Statement of Responsibility Certification Form.

4. Failure to Submit Information as Required: Consequences. Where an offeror fails or refuses to submit the required information, the offeror shall be ineligible for contract award in the subject procurement. False certification or information shall be grounds for a non-responsibility determination; debarment; termination for default; or, any combination thereof,

5. Where a solicitation document requires the submission of a certification form, failure to file a Statement of Responsibility Certification Form shall be an amendable defect prior to contract award.

6. Use of the Statement of Responsibility Certification Form in all procurements is not required.

(e) Making a Responsibility Determination.

1. The Contracting Officer may use the following sources of information to support determinations of responsibility or non-responsibility:

(i) any governmental entity's listing of debarred, suspended, or ineligible contractors;

(ii) records of evaluations of performance, as well as verifiable knowledge of agency business, contracting or audit personnel;

(iii) determinations of violations of federal, state, or local law or executive order;

(iv) information supplied by the offeror, including bid or proposal information, Statement of Responsibility Certification Form replies, financial data, information on production equipment, and personnel information;

(v) pre-award survey or information reports;

(vi) personal knowledge of the contracting officer;

(vii) other sources such as offeror references, publications, contractors, subcontractors and customers of the offeror, financial institutions, other government agencies, and business and trade associations; and

(viii) any other publicly available information.

2. A Contracting Officer shall notify the offeror of unfavorable responsibility information and provide the offeror an opportunity to submit additional information or explanation before a final determination is made by the Contracting Officer.

(f) Determination of Non-Responsibility Required.

1. If an offeror who otherwise would have been awarded a contract is found non-responsible, a determination of non-responsibility setting forth the reasons for the finding of non-responsibility shall be prepared by the Contracting Officer.

2. Notice to the non-responsible offeror shall be mailed no later than two business days after the determination of non-responsibility is made and must inform the contractor of the right to contest the determination through the GTA Protest Procedure set forth in Rule 665-2-11-.07 within five (5) business days of receipt. A copy of the determination of non-responsibility should also be sent to the GTA Office of General Counsel (or its equivalent, by whatever name it is known).

3. The determination of non-responsibility shall be included in the record of the affected procurement.

(g) Protest of Non-Responsibility Determination.

1. Any dispute of a non-responsibility determination must be made via a Protest filed in strict accordance with the provisions of Rule 665-2-11-.07.

2. The protesting party shall have the burden of proving by clear and convincing evidence that there is no rational basis for the non-responsibility determination.

(h) Documentation. Documents reflecting the Contracting Officer's determination of non-responsibility and any Protest and decision with respect to such Protest, and evidence of having supplied written notifications as required by these Rules, shall be included in the record of the subject procurement.

Notes

Ga. Comp. R. & Regs. R. 665-2-11-.12

O.C.G.A. Secs. 50-25-4, 50-25-7.3.

Original Rule entitled "Offeror Responsibility" adopted. F. June 25, 2004; eff. July 15, 2004.