On January 8, the Government Accountability Office (GAO) sustained a pre-award bid protest filed by Bass, Berry & Sims PLC (Bass Berry), which challenged the Federal Law Enforcement Training Centers’ (FLETC or the Agency) determination to exclude the protester, UNICA-BPA JV, LLC (UNICA), from a competition when UNICA had an active SAM registration at the time of final proposal revision (FPR), but not at the time of its initial proposal submission. The decision clarifies that FAR 52.204-7, System for Award Management applies to the proposal that would bind the offeror to perform the resultant contract.
The Solicitation
On November 29, 2023, FLETC issued a solicitation for an 8(a) set-aside contract, seeking dormitory management support services at its campus in Glynco, Georgia. UNICA, an 8(a) joint venture, submitted its initial proposal by the January 2, 2024 deadline. After reviewing initial proposals, the FLETC notified UNICA that it had been excluded from the competitive range. In response, Bass Berry filed a protest on UNICA’s behalf challenging its exclusion to the GAO.
The agency took corrective action by including UNICA in the competitive range and initiating discussions. Following its discussions with the Agency, UNICA submitted its FPR on July 10, 2024. On August 6, 2024, the agency issued a preaward notice identifying UNICA as the apparent successful offeror.
At that time, another offeror, T47 International, filed a second protest, arguing that UNICA was ineligible for award due to a lack of an active SAM registration at the time of its initial proposal submission. FLETC responded by indicating that it would rescind the preaward notice, and T47 withdrew its protest. On August 23, 2024, the Agency rescinded its preaward notice and issued a “notice of exclusion” to UNICA, stating that it was ineligible for the award due to the SAM registration issue. UNICA requested a debriefing, which was provided on September 30, 2024. Subsequently, UNICA filed another protest with the GAO on October 4, 2024.
The Protest
The RFP incorporated FAR 52.204-7, System for Award Management, which states:
“[a]n 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, and through final payment of the contact, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.”
The protest turned on which offer triggers the requirement for an offeror to have an active SAM registration. UNICA argued that its FPR was the offer upon which FLETC relied in making its apparent award decision, and therefore the requirement for an active SAM registration was triggered upon its submission of the FPR. The Agency argued that FAR 52.204-7 required UNICA to have an active SAM registration at the time it submitted its initial offeror based upon the language of the FAR clause.
Discussion
GAO agreed with UNICA’s interpretation of the FAR clause. Specifically, GAO looked to the FAR’s definition of the term “offer,” which is “a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract” and determined that the FPR demonstrated UNICA’s “intent to modify or replace its initial offeror.” GAO further found that instead of excluding UNICA from the competition for failing to have an active SAM registration upon submitting its initial offer, FLETC evaluated UNICA’s proposal, conducted discussions with UNICA, and asked UNICA to submit a revised proposal.
GAO concluded that while the Agency could have eliminated UNICA from the competition based on its failure to comply with FAR 52.204-7 upon the submission of its initial offer, the FPR “superseded” and “extinguished” the initial offer making the FPR the only “offer upon which an award could be made.” Therefore, even though UNICA was not actively registered in SAM at the time it submitted its initial offer, because FLETC continued to evaluate UNICA’s initial offer and since UNICA maintained an active SAM registration at the time its FPR was submitted, the Agency’s decision to eliminate UNICA from the competition was unreasonable.
Contractor Considerations
SAM registration and the language of FAR 52.204-7 has been a hotly protested issue recently. For example, in TLS Joint Venture, LLC, GAO determined that an offeror had to be continuously registered in SAM from the time of offer to award. Similarly, the Court of Federal Claims came to the same result in Myriddian, LLC v. United States and Zolon PCS II, LLC v. United States. We wrote about the Zolon case in an earlier blog post.
Additionally, on November 12, 2024, the FAR Council issued an interim rule stating that “the offeror must be registered at time of offer submission and at time of contract award but would not be required at every moment in between those two points.”
While the UNICA decision offers increased clarity to a rule that has historically been subject to differing interpretations, it is still crucial that contractors diligently maintain their SAM registrations to ensure award eligibility and avoid costly litigation.
