SAM Registration

CPT alleges that CS3 failed to disclose its status as a joint venture or its corporate parents in SAM as required by applicable Federal Acquisition Regulation (FAR) clauses and the terms of the solicitation, and accordingly did not have a valid SAM registration. For this reason, CPT argues that CS3’s proposal should have been found technically unacceptable or otherwise ineligible for award. Additionally, the protester argues that the failure to maintain a valid SAM registration disclosing CS3’s ownership structure precluded the protester from being able to investigate and contest the intervenor’s size status and, thus, its eligibility for award. For the reasons that follow, even assuming that CS3’s SAM registration is inaccurate or otherwise not in accordance with the requirements of the FAR, CPT has failed to demonstrate that it was competitively prejudiced by the agency’s waiver of the requirement for a valid SAM registration.

Competitive prejudice is an essential element of any viable protest, and where none is shown or otherwise evident, we will not sustain a protest, even where a protester may have shown that an agency’s actions arguably were improper. Interfor US, Inc., B‑410622, Dec. 30, 2014, 2015 CPD ¶ 19 at 7. With respect to allegations that an offeror’s SAM registration is inaccurate or incomplete, our Office has generally recognized that minor informalities related to SAM (or its predecessor systems) registration generally do not undermine the validity of the award and are waivable by the agency without prejudice to other offerors. See, e.g., High Plains Computing, Inc. d/b/a HPC Solutions, B-409736.2, Dec. 22, 2014, 2014 CPD ¶ 379; C.L.R. Dev. Grp., B‑409398, Apr. 11, 2014, 2014 CPD ¶ 141 at 7. We have found no prejudicial error in these cases largely because an awardee’s registration status does not implicate the terms of its proposal, and there is nothing to suggest that another offeror would have altered its proposal to its competitive advantage in response to a relaxed SAM registration requirement. C.L.R. Dev. Grp., supra; Graves Constr., Inc., B-294032, June 29, 2004, 2004 CPD ¶ 135 at 3.

Even accepting CPT’s allegations that CS3’s SAM registration was not in compliance with applicable FAR provisions or otherwise was inaccurate, the protester has not established that it was prejudiced by the agency’s waiver of the SAM registration requirement. It has not, for example, demonstrated that CS3’s SAM registration provided the intervenor with any competitive advantage, or explained how CPT would have amended its proposal had it known that the agency would not strictly enforce the SAM registration requirements. Furthermore, the protester’s argument that it was prejudiced in its ability to investigate and challenge CS3’s size status is undermined by the protester’s representation that “CPT filed a size protest which was submitted to the [Small Business Administration]-the appropriate fact finder.” See Opp. to Intervenor’s Request for Partial Dismissal (May 25, 2018) at 3. On this record, we find no basis on which to sustain the protest.  (Cyber Protection Technologies, LLC B-416297.2, B-416297.3: Jul 30, 2018)

Where a vendor’s quotation represents that it will perform a task order in a manner materially different from the vendor’s actual intent, an award based on such a quotation cannot stand, since both the vendor’s representations, and the agency’s reliance on such, have an adverse impact on the integrity of the procurement process. See FCi Fed., Inc., B-408558.7, B-408558.8, Aug. 5, 2015, 2015 CPD ¶ 245 at 7, citing Greenleaf Constr. Co., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 8‑10. A misrepresentation is material where the agency relied upon it and it likely had a significant impact on the evaluation. Superlative Technologies, Inc., B-408941, Dec. 30, 2013, 2014 CPD ¶ 18 at 5. 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. Here, we find no evidence that CAC made a material misrepresentation in its quotation.

As an initial matter, despite the protester’s insistence that the agency relied on CAC’s representation that it had “entered into initial agreements” for access to its proposed aircraft, the RFQ did not require quotations to include written teaming agreements, subcontracting agreements, or other commitments of any kind concerning its proposed aircraft, and we see no evidence that any offeror was credited for such agreements under the technical approach/QASP subfactor. Rather, the RFQ required only that the offerors provide required documentation for the DSLA aircraft proposed and, to the extent that the agency awarded strengths in this area, the strengths concerned only the number of additional aircraft proposed (both CSI and CAC received a strength for exceeding the 10 DSLA aircraft requirement).

With respect to whether CAC misrepresented its intent to provide the DSLA aircraft that it proposed, we see no evidence in the record that this was the case. The record here includes correspondence between CAC and its proposed air carriers demonstrating that the air carriers voluntarily provided CAC with, for example, pricing information and required aircraft documentation for the purpose of responding to this RFQ. AR, Tab 37, Subcontractor Email at 1-2 (providing CAC with aircraft pricing per airport under the email subject line “ICE Support”); Tab 38, Subcontractor Email, at 1-2 (providing CAC with aircraft registration and airworthiness documentation “for the ICE bid”). While the record does not include comprehensive documentation of CAC’s negotiations with its proposed air carriers, or any written “initial agreements,” the correspondence in the record clearly shows that CAC engaged with its proposed air carriers during the preparation of its quotation, and provides no basis on which to conclude that CAC misrepresented its intent to provide 10 of the 24 DSLA aircraft in its quotation for the agency’s exclusive use, or to have the remainder available on a stand‑by basis, in the event it prevailed in the competition. Id.

CSI next alleges that CAC’s quotation also includes misrepresentations concerning CAC’s use of Boeing 737 aircraft identified in CAC’s technical approach and price quotation. CSI explains that during a size status challenge at the Small Business Administration (SBA), CAC represented with regard to one air carrier and several other subcontractors included in its quotation that it had “no intention to subcontract to these firms at this time.” CSI Second Supplemental Protest, Attachment 3, SBA Size Status Decision, at 9. Based on this information, CSI alleges that CAC knew that it would not have sufficient Boeing 737 aircraft to perform consistent with its technical approach and price quotation, and intends to substitute less desirable aircraft during performance.

We see nothing in the record to suggest that CAC misrepresented its intention to utilize Boeing 737 aircraft consistent with its quotation. While CSI contends that CAC’s other air carriers do not account for sufficient Boeing 737 aircraft to support CAC’s proposed approach, the record shows that the combination of aircraft owned by the carriers and aircraft owned by third parties but to be operated by the proposed carriers does in fact account for a sufficient number of Boeing 737s. AR, Tab 9, CAC Quotation, at 11-13.

Further, we see nothing inconsistent between CAC’s proposed approach and CAC’s representation in the SBA size status proceeding that CAC did not intend to subcontract with certain firms included in its quotation at this time. In this regard, CAC’s quotation included documentation for 24 total DSLA aircraft, but explained that “[o]f these aircraft ten will be dedicated exclusively to [ICE Air Operations] per the PWS,” while the balance of the aircraft “will be available on a stand-by basis.” AR, Tab 9, CAC Quotation, at 11. Here, two of CAC’s proposed air carriers account for more than a sufficient number of aircraft to fulfill the PWS’s exclusive use requirements. Thus, since CAC does not need to rely on the resources of the additional air carrier or on subcontracted air charter brokers that it represented it did not intend to utilize at this time, there is no inconsistency with the representations in CAC’s quotation. As explained above, the RFQ and PWS did not require the vendors to provide subcontractor agreements or firm commitments in their quotations.  (CSI Aviation, Inc. B-415631, B-415631.3, B-415631.4: Feb 7, 2018)

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)

The RFQ required that "a prospective awardee" be registered in the CCR database "prior to award." The RFQ went on to state that "[i]f the offeror does not become registered in the CCR database in the time prescribed by the Contracting Officer, the Contracting Officer will proceed to award to the next otherwise successful registered Offeror." RFQ at 21.

Three quotations were received, but only the protester and the awardee were found technically acceptable. The two vendors were considered essentially equal in terms of past performance. Thus, price became the determining factor and the agency decided to make award to NISANT whose price was considerably lower than the protester's.

Before making the award on September 30, the agency noted that NISANT was not yet registered in the CCR database, although it had a CCR registration pending. The agency determined that an exception to the CCR registration requirement was applicable under Federal Acquisition Regulation (FAR) sect. 4.1102(a)(5), which provides for an exception to CCR registration for "[a]wards made to foreign vendors for work performed outside the United States, if it is impractical to obtain CCR registration." On September 30, before making award, the agency completed a waiver of the CCR registration requirement, which was approved at the appropriate agency level, that certified that this was an award made to a foreign vendor for work to be performed outside the United States and that it was impractical to obtain CCR registration prior to award. Agency Report, Tab 1, CCR Registration Waiver (Sept. 30, 2010). The agency determined that it was impractical to delay award pending the completion of NISANT's CCR registration because the agency required the uninterrupted delivery of these medical services, which were scheduled to end on September 30. In addition, NISANT had submitted the best value proposal whereas the protester's proposal's substantially higher price could not be determined fair and reasonable. Contracting Officer Statement at 2. The agency made award to NISANT on September 30. This protest followed.

The protester argues that NISANT was ineligible for award because the firm was not registered in the CCR prior to award.

The solicitation did not require that contractors be registered in the CCR prior to the submission of quotations, but rather, required such registration prior to award. RFQ at 21; see Charter Envtl., Inc., B-297219, Dec. 5, 2005, 2005 CPD para. 213 at 4 (bid cannot be rejected as nonresponsive on the basis that the bidder had not yet registered in the CCR). While an agency is generally obligated to ensure that prospective contractors are registered in the CCR database before award, see FAR sect. 4.1102(a), the FAR provides a specific exception invoked by the agency that covers the present situation. FAR sect. 4.1102(a)(5). The protester does not deny that the required services could not be interrupted, but argues that award should have been made to the next vendor in line for award, that is, the protester. However, the regulations do not require this course of action, but allow the agency to exercise its discretion to make award to the best-value vendor, where, as here, the conditions of this exception are satisfied. We conclude that the protester has not shown that the agency's determination, that it was impractical for the awardee to obtain CCR registration prior to award, was erroneous.  (Istituto di Medicina del Lavoro- Archimede, B-404650, February 18, 2011)  (pdf)

CCITE asserts that SIKU is ineligible to do business with the government because its parent company, Harpoon Construction Group, is not registered in the CCR database. The requirements for registering in the CCR database are set out in Federal Acquisition Regulation (FAR) subpart 4.11. Nowhere in that subpart does the FAR require that a prospective contractor's parent company be registered. Rather, the regulations pertain to the offeror itself. See FAR sect. 4.1102(a) ("Prospective contractors must be registered in the CCR database."); FAR sect. 4.1103(a)(1) (the contracting officer is to verify that the prospective contractor is registered). As the protester recognizes, the record here shows that SIKU is registered in the CCR. While CCITE argues that the registration requirement should be held to apply to SIKU's parent company, Harpoon, because SIKU is a wholly-owned subsidiary of Harpoon, there is no support in the applicable regulations for this position.  (Computer Cite, B-400830, February 3, 2009) (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)

(a) . . . (2) If the clause at 52.204-7 is not included in this solicitation, and the offeror is currently registered in [Central Contractor Registration], and has completed the ORCA electronically, the offeror may choose to use paragraph (b) of this provision instead of completing the corresponding individual representations and certifications in the solicitation. The offeror shall indicate which option applies by checking one of the following boxes:

[ ] (i) Paragraph (b) applies.
[ ] (ii) Paragraph (b) does not apply and the offeror has completed the individual representations and certifications in the solicitation.

(b) The offeror has completed the annual representations and certifications electronically via the Online Representations and Certifications Application (ORCA) website at http://orca.bpn.gov. After reviewing the ORCA database information, the offeror verifies by submission of the offer that the representations and certifications currently posted electronically . . . are current, accurate, complete and applicable to this solicitation . . . .

FAR § 52.204-8; see AR at 64 (solicitation, failing to indicate inclusion of FAR § 52.204-7). In its proposal, Hawk checked the box indicating that paragraph (b) of FAR § 52.204-8 applied. AR at 730. Hawk also checked the representation set forth at section K-6 of the proposal. AR at 731. Moreover, in his request for permission to award the contract to Hawk, the contracting officer states that he reviewed Hawk’s annual representations and certifications and found them to be complete. AR at 745 (Prenegotiation Objective Memorandum). From the record, it appears to the court that Hawk did provide certifications and representations required by the solicitation, and any error in not having an online record of Hawk’s certifications and representations is harmless. (Precision Standard, Inc., v. U. S., and Hawk Enterprises, LLC., No. 05-1125C, Filed: February 27, 2006) (pdf)