As we’ve written about on the blog, protests have been decided because the offeror was not registered in SAM for the entirety of the proposal review process period. For instance, in this post, we discussed a GAO decision where GAO held that the FAR requires offerors to maintain SAM registration throughout the evaluation period, meaning from proposal submission to award of the contract. A COFC case came to the same conclusion. Well, the federal government didn’t like the result and has published an interim rule to remedy it.
In a recent interim rule effective November 12, 2024, the FAR is being updated to clarify that “the offeror must be registered at time of offer submission and at time of contract award, but would not be required to be registered at every moment in between those two points.”
Timing
This is an interim rule, meaning it is effective starting November 12, but comments are accepted until January 13, 2025. DoD, GSA, and NASA determined that immediate application of this rule “is necessary to protect contractors and the Federal Government from the costs and delays of bid protest litigation.”
FAR 52.204-7
The rule will update FAR 52.204-7, System for Award Management. The old version of that rule stated: “An Offeror is required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award, during performance . . . .” As noted in some legal decisions we wrote about on the blog, tribunals had interpreted this language “as requiring an offeror to be registered at the point of offer submission and maintain that registration through contract award.”
The new language will remove this continuous registration requirement and only require registration at two points in time:
(1) Time of offer.
(2) Time of contract award.
The federal register commentary provided a rundown of how contracting officers typically check for SAM registration:
In practice, contracting officers, in the preaward environment, generally verify registration status of offerors at the points of offer submission and contract award and not the time between those two points. Contracting officers typically do this registration review as part of a broader responsibility and qualification review in SAM ( e.g., reviewing the entity’s status for possible debarment, suspension, proposed debarment, or other Governmentwide exclusion).
The new language will state: “An Offeror is required to be registered in SAM when submitting an offer or quotation and at time of award (see FAR clause 52.204-13, System for Award Management Maintenance, for the requirement to maintain SAM registration during performance and through final payment).”
Conclusion
The FAR Council has acted to make the SAM rule a little less draconian. This should be a good result for contractors, but still should serve the purpose of having contractors properly registered in SAM.
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