The GAO has dismissed a bid protest alleging that the awardee of a Defense Logistics Agency contract was not registered in the E-Verify system.
According to the GAO, a contractor’s E-Verify registration is a matter of contract administration to be addressed after award, and thus outside of the GAO’s bid protest jurisdiction.
The GAO’s bid protest decision in Ashland Sales & Services Company, B-408969 (Nov. 1, 2013) involved a DLA small business set-aside procurement for Air Force lightweight jackets. The solicitation contained the clause at FAR 52.222-54 (Employment Eligibility), which provides, in relevant part, that if the contractor is not enrolled in E-Verify at the time of award, it will enroll within 30 calendar days of award.
The DLA awarded the contract to Creighton AB, Inc., which proposed the lowest total price. An unsuccessful competitor, Ashland Sales & Services Company, then filed a GAO bid protest. Ashland complained that Creighton was not registered in the E-Verify system, as called for in the solicitation. Ashland also argued that Creighton had been awarded previous DLA contracts containing FAR 52.222-54, but had not enrolled in E-Verify.
The GAO wrote that its bid protest function is to consider “challenges to the award or proposed award of contracts.” Therefore, “we generally do not review matters of contract administration, which are within the discretion of the contracting officer and for review by a cognizant board of contract appeals or the Court of Federal Claims.”
In this case, the GAO noted that FAR 52.222-54 did not require bidders to be enrolled in E-Verify at the time of award, as suggested by Ashland, but rather 30 days after award. The GAO wrote that “we find this postaward requirement, which applies to contractors, to be a matter of contract administration having to effect upon the validity of an award.”
With respect to Creighton’s failure to enroll as required by previous contracts, the GAO wrote, “[w]hile we do not condone Creighton prior failure to enroll in the E-Verify system as required, we find this does not render its proposal here technically unacceptable, nor is contract award otherwise precluded by any procurement statute or regulation.” The GAO dismissed the protest.
The Ashland Sales & Services Company bid protest is a good reminder that not every failure to comply with a legal requirement can be the basis for a GAO bid protest. Rather, some requirements–like E-Verify enrollment–kick in only after award, and thus are outside of the GAO’s bid protest jurisdiction.