Nationwide objects to the
agency’s determination that it was not an eligible small
business concern, and asserts that issuance of the order
to a higher-priced bidder was unreasonable. In reviewing
protests challenging an agency’s evaluation, we examine
the record to determine whether the agency’s judgment was
reasonable and in accord with the terms of the
solicitation. See Planned Sys. Int’l, Inc.; Technical
Professional Servs., Inc., B-408685.7; B-408685.11, June
13, 2014, 2014 CPD ¶ 176 at 6.
Here, the record shows, and Nationwide does not contest,
that Nationwide’s SAM profile represented that Nationwide
was not a small business under the applicable NAICS code
and in fact, the SAM profile did not represent Nationwide
was small under any NAICS code. AR exh. 2, Nationwide’s
SAM Profile at 11. While the protester argues that it is
listed by Dun and Bradstreet as a small business and notes
that it identified itself as a small business on the cover
of its FedBid submission, see Protester’s Comments at 1,
these facts are not relevant where the solicitation
specifically required firms to complete the applicable
small business representations required by FAR clause
52.212-3 in SAM or to submit the required representations
and certifications with the bid. In fact, Nationwide’s
FedBid submission indicated that it had completed the
applicable representations and certifications in SAM.
Since the record reflects that at the time the agency
checked SAM, Nationwide had affirmatively represented that
it was not a small business, we have no basis to conclude
that the agency acted unreasonably when it eliminated
Nationwide from the competition on the basis that it was
not a small business concern. (Nationwide
Value Computer, Inc. B-411190: Jun 11, 2015) (pdf)
Material
Misrepresentation
ERIMAX maintains that VMSI’s quotation improperly included
ASI as a subcontractor for this BPA. Specifically, ERIMAX
asserts that VMSI did not have permission from ASI to use
its name (or the names of any of its employees) in
ERIMAX’s quotation.
ERIMAX supports this contention in two ways. First, it
provides sworn affidavits from ERIMAX employees regarding
conversations they had with an ASI employee. In this
regard, ERIMAX provides two affidavits that describe two
separate conversations held between ERIMAX employees and
an employee of ASI. In both affidavits, the ERIMAX
employees state that the ASI employee informed them that
he had participated in a telephone conversation wherein
VMSI was informed that “ASI was on another team
exclusively, and that VMSI could not use ASI or its
information in their proposal.” Protest, Affidavit of
ERIMAX Employee RR, at 4‑5; Protest, Affidavit of ERIMAX
Employee WM, at 4.
Second, ERIMAX’s protest includes a letter from ASI to
ERIMAX, dated October 6, 2014, which provides in relevant
part:
ASI teamed exclusively with ERIMAX for the NOAA AGO
Support Contract proposal and did not have any
agreement--written, verbal, or otherwise--in which ASI
Government permitted any other company to use ASI’s name,
or any of ASI’s people’s names, in any other company’s
proposal for this opportunity.
Protest, exh. F, ASI Letter to ERIMAX. This letter was
signed for the President/CEO of ASI by ASI’s Director of
Contracts. The Director of Contracts was also the
individual who signed the exclusive teaming agreement with
ERIMAX. AR, Tab 28, ERIMAX Teaming Agreement, at 8.
In response to the protester’s allegations, VMSI contends
that it had been in negotiations with ASI prior to
quotation submission for an exclusive teaming agreement
and, when the negotiations fell through, it was granted
oral permission from the president of ASI to use ASI’s
name in the firm’s quotation--so long as VMSI did not make
any statement regarding any exclusivity between VMSI and
ASI. Intervenor’s Comments, Nov. 24, 2014, at 5. To
support its assertions, VMSI provides four declarations
from VMSI personnel. The first declaration, from the chief
executive officer (CEO) of VMSI, provides that he
participated in a telephone call on July 9, 2014, in which
the president of ASI informed him that ASI would not be
teaming with VMSI for this procurement, and that ASI was
teaming with another company. Id. attach. 1, Declaration
of VMSI CEO, at 3. During the phone call, the CEO of VMSI
asked the president of ASI “if ASI was agreeable to VMSI
keeping the references to ASI in its proposal so long as
VMSI did not make any statements regarding any exclusivity
between VMSI and ASI or any established pre‑award teaming
agreement.” Id. The president of ASI replied that
“Yes--that is ok.” Id. VMSI’s remaining declarations
support the CEO’s declaration, with two declarations from
individuals who were in the room during the phone call,
and from an individual who spoke with the CEO of VMSI
after the phone call. Id. attach. 2, 3, 4.
A vendor’s material misrepresentation in its quotation can
provide a basis for disqualification of the quotation and
cancellation of a contract award based upon the quotation.
Superlative Technologies, Inc., B-408941, Dec. 30, 2013,
2014 CPD ¶ 18 at 5. A misrepresentation is material where
the agency relied upon it and it likely had a significant
impact on the evaluation. Id. For a protester to prevail
on a claim of material misrepresentation, the record must
show that the information at issue is false. Vizada Inc.,
B-405251 et al., Oct. 5, 2011, 2011 CPD ¶ 235 at 9;
Commercial Design Group, Inc., B-400923.4, Aug. 6, 2009,
2009 CPD ¶ 157 at 6.
Based upon the record before us, we find that the
protester has not provided sufficient evidence to
demonstrate that the awardee made a material
misrepresentation in its proposal with regard to the use
of a proposed subcontractor’s name. While the protester
contends that the awardee did not have permission to use
ASI’s name as a proposed subcontractor, we do not find the
protester’s arguments and affidavits to be persuasive. In
this regard, while the protester states that VMSI did not
have permission to use ASI’s name, VMSI has presented
declarations indicating that it specifically had such
permission. In an attempt to rebut VMSI’s declarations,
ERIMAX provides affidavits not from ASI employees, but
rather, from ERIMAX employees that state only what ASI
employees said. We similarly do not find the letter from
ASI to ERIMAX, which contends that it did not give
permission for VMSI to use its name, to be persuasive
evidence of a misrepresentation where VMSI has provide
declarations to the contrary. In this regard, the letter
was submitted directly to ERIMAX, served ASI’s own
interests, and was not under penalty of perjury. We also
note that the record contains several emails between VMSI
and ASI immediately following award that indicate the two
firms were negotiating in an effort to reach a post‑award
subcontracting arrangement. See Intervenor’s Comments,
Nov. 24, 2014, exhs. 8‑13. On this record, we do not
believe ERIMAX has shown the representations of VMSI to be
false. (ERIMAX, Inc.
B-410682: Jan 22, 2015) (pdf)
Compliance with Solicitation’s Small
Business Set-Aside Requirements
As described above, the RFQ was amended during the course of the
procurement, and changed from an unrestricted solicitation to a
small business set-aside. To be eligible for award as a small
business, an offeror is required to represent in good faith that
it is a small business at the time of its written
representation. FAR § 19.301-1(a); see also 69 Fed. Reg. 76341
(Dec. 20, 2004) (describing operation of electronic
representations of size status).
Linen King’s quotation did not make that representation; rather,
it represented that it “is not” a small business. AR Tab 19,
Linen King Cost Quotation, at 77. In response to questions from
our Office, the contracting officer stated that Linen King made
a “common mistake . . . given the layout of the question,” and
that Linen King, in fact, is a small business. Letter from
Counsel for VA to GAO, Apr. 12, 2012, at 2. According to counsel
for the VA, the contracting officer based this conclusion on a
listing in the Central Contractor Registry (ccr.gov) for a firm
with a similar name--“Linen King Group LLC,” of Columbia,
Missouri, although the vendor submitting the quotation here
identified itself as Linen King L.L.C., of Bixby, Oklahoma. Id.
& exh. 4, CCR record for Linen King Group LLC dated Apr. 12,
2012, at 3-4. Although the CCR listing provided by the VA does
indeed describe “Linen King Group LLC” as a small business, the
listing also expressly warns on the top of the first page that
it is “[n]ot to be used as certifications and representations.
See ORCA [the Online Representations and Certifications
Application].” Id. at 3. No online representations and
certifications are available for either firm (that is, Linen
King LLC, of Bixby, Oklahoma, or Linen King Group LLC, of
Columbia, Missouri).
In our view, the VA had no reasonable basis--that can be seen in
this record--to conclude that Linen King LLC, of Bixby, Oklahoma
(the firm that submitted the quotation) had validly represented
itself as a small business and was eligible for award--since its
quotation unambiguously represented precisely the opposite. The
fact that data (which warns that it is an unofficial listing)
retrieved with regard to a similarly-named firm described that
firm as a small business does not reasonably overcome Linen
King’s unambiguous representation that it is not. Accordingly,
we sustain the protest. (Tipton
Textile Rental, Inc., B-406372, May 9, 2012) (pdf)
Where a bidder or offeror
represents that it will furnish end products of the United
States or designated countries, it is obligated to comply with
that representation. Leisure-Lift, Inc., B‑291878.3, B-292448.2,
Sept. 25, 2003, 2003 CPD para. 189 at 8. That is, where a bidder
or offeror leaves the certificate blank and does not exclude any
end product from the certificate, and does not otherwise
indicate that it is offering anything other than a TAA-compliant
end product, acceptance of the offer will result in an
obligation on the offeror’s or bidder’s part to furnish a TAA-compliant
end product. See Aesculap Instruments Corp., B-208202, Aug. 23,
1983, 83-2 CPD para. 228 at 3 (involving similarly worded Buy
American certificate). Under such circumstances, the agency can
rely upon an offeror’s representation/certification of
compliance with the TAA unless the agency has reason to believe,
prior to award, that the offeror will not provide a compliant
product. See Leisure-Lift, Inc., supra. In this case, CDWG
expressly declined to provide the required certification and
thus did not expressly bind itself to provide a TAA-compliant
end product as required by the solicitation. That is, as noted
above, CDWG stated on the ORCA, which it incorporated by
reference in its proposal, that it had “elected not to complete”
the Trade Agreements Certification and that it was required to
provide information regarding this provision with its proposal.
AR, Tab I, CDWG ORCA Public Certification, at 19. However, CDWG
did not supplement this certification in its proposal, or
otherwise, with regard to this acquisition. Moreover, FPI did
not ask CDWG to supplement this uncompleted certification at any
time prior to award, even though it affected CDWG’s obligation
to provide a TAA-compliant end product; nor did the agency ask
whether CDWG’s offered product would comply with the TAA.[10]
Award may not be based upon a proposal, where, as here, the
offeror declines to certify compliance, as required, with a
material term of the solicitation, in this case the TAA, such
that the proposal consequently fails to establish a legal
obligation to comply with that material term. See Automatics
Ltd., B-214997, Nov. 15, 1984, 84‑2 CPD para. 535 at 2. The
prejudice in this case of not requiring this certification prior
to award is obvious, given that CDWG delivered thin clients
marked “Made in China” that apparently do not comply with the
TAA. (Wyse Technology, Inc.,
B-297454, January 24, 2006) (pdf) |
