Fed Serve, LLC (B-423526; B-423526.2)

You should not care.

Category: Responsibility, past performance

Date: 4 August 2025

URL: https://www.gao.gov/products/b-423526%2Cb-423526.2

Fed Serve protested the US Air Force’s best value award to OK2 Construction for construction, sustainment, restoration, and modernization at Minot AFB, arguing the contracting officer should have found OK2 nonresponsible for lacking state licenses and that OK2’s past performance warranted a lower confidence rating. GAO dismissed the challenge to responsibility because the allegations did not meet the narrow exceptions for reviewing affirmative responsibility determinations, and dismissed the past performance challenge as legally and factually insufficient.⁠⁠

Responsibility and licensing under FAR 52.236-7: GAO reiterated that FAR clause 52.236‑7, Permits and Responsibilities, imposes a performance obligation on the contractor postaward, not a preaward licensing requirement for offerors. Absent credible evidence of very serious misconduct (for example criminal activity or False Claims Act issues), GAO will not review an affirmative responsibility determination. Allegations based on state “standing” lookups were speculative and insufficient.

Past performance challenge lacked detail: Fed Serve alleged OK2 had past performance issues, including “performing over $22 million in contracts in Wyoming without a valid license . . . [t]hese are serious past performance issues that call into question its ability to perform.” GAO found, however, “the protester does not discuss any of the awardee's past performance references or provide any details to support its challenge to the past performance evaluation. The protester only references the arguments and evidence it presented under its challenge to the affirmative responsibility determination. As a result, we dismiss this argument as lacking a legally and factually sufficient basis of protest.”

Protest dismissed. Challenges to affirmative responsibility require credible, supported evidence of serious wrongdoing; generic licensing status checks are not enough. Past performance protests must address the record with specific allegations to survive dismissal.⁠⁠

Digest

1. Protest challenging the contracting officer's affirmative determination of responsibility is dismissed where the allegation does not meet the exceptions to trigger a review under our Bid Protest Regulations.
2. Protest challenging the evaluation of the awardee's past performance is dismissed for lacking a legally and factually sufficient basis of protest.