GAO: No Protest Under Omitted FAR Clause

A would-be protester had no valid basis to allege agency wrongdoing when the protester’s allegation was that the awardee would violate a FAR performance of work clause–but the clause was not included in the solicitation.

In a recent decision, the GAO held (unsurprisingly), that a protester could not challenge the awardee’s supposed failure to comply with FAR 52.236-1 because the clause was omitted from the solicitation.

GAO’s decision in Gaver Industries Inc., dba Barker & Barker Paving, B-412428 (Feb. 9, 2016) involved a VA IFB for asphalt paving repairs at the Lebanaon VA Medical Center in Pennsylvania.  The IFB was set-aside for SDVOSBs, and contemplated the award of a fixed-price contract.

The IFB did not include FAR 52.236-1 (Performance of Work by the Contractor).  FAR 52.236-1 requires that the prime contractor perform a certain percentage of the work with its own forces.  Although the default is 12%, the contracting officer may adjust the required percentage.

FAR 52.236-1 is required to be included in certain solicitations for fixed price construction contracts exceeding $1.5 million.  However, the clause is optional for fixed-price construction contracts of $1.5 million or less.  Additionally, the clause ordinarily does not apply to set-aside contracts, which include their own performance of work requirements.

The IFB did include VAAR 852.236-72.  This clause is expressly designated as a supplement to FAR 52.236-1 and explains how to calculate compliance with the performance requirements set forth in the FAR clause.

After evaluating competitive bids, the VA awarded the contract to aEONRG, LLC, the lowest bidder, at a fixed price of $219,496.84.  Gaver Industries, Inc. dba Barker & Barker Paving was the second-lowest bidder.

After Barker & Barker’s agency-level protest was denied, Barker & Barker filed a GAO bid protest.  Barker & Barker alleged, in part, that aEONRG could not meet the requirements of FAR 52.236-1.  Barker & Barker essentially argued that aEONRG was incapable of performing 12% of the work with its own forces.

The GAO noted that “the IFB did not include FAR 52.236-1, nor was this clause required to be included in the solicitation.”  Further, “the IFB did not require bidders to submit any information with their bids demonstrating the amount of work to be performed by the contractors themselves.”  Therefore, the VA would have been unable to evaluate aEONRG’s compliance as part of its evaluation.

The GAO acknowledged that the solicitation included VAAR 852.236-72, but stated that this clause “which details how to measure the amount of contractor-performed work” is “without effect when FAR clause 52.236-1–which establishes the required amount of contractor-performed work–is absent.”  The GAO wrote that, to the extent that Barker & Barker believed that FAR 52.236-1 should have been included in the IFB, such an allegation was an untimely protest of the terms of the IFB.

Returning to Barker & Barker’s argument regarding aEONRG’s compliance, the GAO held that Barker & Barker “argues that aEONRG’s bid failed to comply with a nonexistent requirement.”  The GAO dismissed Barker & Barker’s allegation.

It is not entirely clear from the GAO’s opinion why Barker & Barker thought that aEONRG was required to comply with FAR 52.236-1, but it’s a good bet that Barker & Barker was confused by the VA’s insertion of VAAR 852.236-72.  If so, it’s a reminder that agency solicitations are often far from perfect.  Here, the VA likely included VAAR 852.236-72 by accident–but the clause had no meaning without the underlying FAR provision.  And, as the GAO held, when a solicitation does not include a particular FAR clause, a protester ordinarily has no valid legal basis to complain that the awardee did not comply with that clause.

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