A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.
A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.
What is the difference? Let’s look at the two terms and their practical effect on a company’s ability to cure deficiencies.
The GAO’s decision in Master Pavement Line Corporation, B-419111 (December 16, 2020), involved the Department of Transportation, and a Federal Highway Administration IFB for repair services in Puerto Rico. The IFB anticipated an award to the lowest-priced bidder who conformed to the solicitation requirements.
The IFB came with a checklist for submission which included the following statement, “THE FOLLOWING THREE ITEMS IF NOT SUBMITTED WITH THE BID; MUST BE COMPLETED ELECTRONICALLY PRIOR TO CONTRACT AWARD.” One of these items was SAM registration. The IFB also included reference to FAR 52.204-7, which requires bidders to be registered in SAM at the time an offer is submitted. This requirement in FAR 52.204-7 continues until time of award, during performance, and through final payment from the solicitation.
Master Pavement submitted its timely proposal to the agency. Master Pavement was the apparent low bidder for the solicitation. However, its SAM registration expired on June 28, 2013. The agency determined the proposal to be nonresponsive, as Master Pavement was not registered in SAM as required by FAR 52.204-7. Two days after bid opening, Master Pavement submitted its SAM registration for processing. Despite the now-current SAM registration, the contracting officer notified Master Pavement that its proposal was rejected as nonresponsive.
The agency contended the SAM certification was required, and failure to submit current SAM certifications rendered the proposal nonresponsive. GAO quickly rejected this argument, finding the agency could not make a requirement a matter of responsiveness just by saying it. Generally, responsiveness is limited to the material obligations of a bidder. GAO found material obligations to be: price, quantity, quality, or delivery terms of the bid.
GAO found, “matters concerning contractor representations and certifications generally pertain to a bidder’s responsibility, not the responsiveness of a bid.” Although the solicitation specifically required the certifications to be correct at the time of bidding, failure to provide these in an IFB setting does not render a proposal nonresponsive. In making this finding, GAO determined the SAM registration a matter of responsibility. Citing to a list of cases, GAO found an agency cannot convert a matter of eligibility or responsibility into one of responsiveness.
GAO wrote:
Our decision in this case is distinguishable from our recent decision in Acon Traders, LLC, B-417558, June 26, 2019, 2019 CPD ¶ 226 where we denied a protest challenging the agency’s rejection of a quotation when the firm submitting the quotation was not registered in SAM at the time it submitted its quotation as required by FAR provision 52.204-7. Unlike the case here, in Acon, the procurement was conducted using the simplified acquisition procedures of FAR part 13, which do not have the same mandatory cure or waiver provisions as set forth in FAR 14.405, and the protester was otherwise ineligible for award because it was technically unacceptable.”
Basically, this might not be the case for procurements without the a mandatory cure or waiver provisions as set forth in FAR 14.405. So, this holding won’t apply in all situations.
To give an example, if the agency had reached out and given Master Pavement an opportunity to cure its SAM registration prior to award, and they could not do so, then the agency could refuse to award the contract.
The key takeaway from this case is first to ensure all of your representations and certifications are up to date prior to submission of any proposal. As well, the case underscores at least in an IFB setting, items which do not pertain directly to performance of the solicitation are matters of responsibility, not responsiveness. Think of it this way: responsibility is akin to having the degree and experience required by a job when you apply. Whereas responsiveness is submitting your documents and showing how you are going to perform that job well enough to get an interview and have the employer consider making a job offer.
Hitting send on a proposal is a huge moment in the contracting process, and it freezes a lot of items in place. Luckily for this protester, it found one of the instances where a proposal can be fixed after the fact.
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