Protest objecting to the rejection of the protester’s bid as non-responsive is sustained. The agency rejected the bid because the protester did not have an active System for Award Management Registration when it submitted its bid. GAO reasoned that compliance with registration requirements are matters of responsibility, not responsiveness. The lack of registration was an immaterial defect that did not affect price, quality, or quantity and thus did not render the bid non-responsive. The agency erred in rejecting the bid.
The Federal Highway Administration (FHA)posted an invitation for bids (IFB) seeking a contractor to repair signs and guardrails. The IFB provided that the contractor had to be registered with the System for Award Management (SAM) prior to contract award. But the IFB also incorporated FAR 52.204-7, which requires bidders to be registered with the SAM at the time of an offer.
Master Pavement Line Corporation submitted a bid in response to the IFB. FHA, however, determined that the bid was non-responsive because Master Pavement was not registered with SAM when the bid was submitted. Rather, Master Pavement submitted its SAM registration for processing two days after bid opening.Master Pavement protested, arguing that FHA erred in finding its bid non-responsive.
Master Pavement contended that the IFB contained misleading instructions as to the SAM registration. The text of the IFB stated that SAM registration had be completed by the time of award, but the incorporated FAR provision stated the registration had to be done by the time of the offer. Master Pavement it followed to the IFB’s clear instruction rather than the hundreds of pages of incorporated FAR provisions.
GAO found that the conflicting language of the SAM registration was a patent ambiguity that Master Pavement should have challenged in a pre-award protest. The company’s complaints about the inconsistent language were now untimely.
Master Pavement also argued that its failure to have an active SAM registration should have been waived by FHA as a minor informality. GAO found this argument more persuasive.
Responsiveness is determined at the time of bid opening from the face of the bid documents. Unless something on the bid modifies the bidder’s obligation to perform in accordance with the terms of the solicitation, the bid is responsive. FAR 14.405 establishes rules for handling bids that contain minor informalities. That provision explains that a defect in a bid is immaterial if it has a negligible effect on price, quantity, quality or delivery.
Here, FHA had failed to explain how Master Pavement’s lack of a SAM registration affected price, quantity, or quality. Matters concerning registrations and certifications generally pertain to a bidder’s responsibility, not to the responsiveness of the bid. The failure to include standard representation and certifications in the bid does not render it non-responsive
Master Pavement is represented by Stuart Weinstein-Bacal of Weinstein-Bacal, Miller & Vega, P.S.C. The agency is represented by Milton Hsieh of the Department of Transportation. GAO attorneys Paula A. Williams and Edward Goldstein participated in the preparation of the decision.
