The solicitation required offerors to be registered with the System for Award Management (SAM) when they submitted proposals. The protester submitted a proposal as a joint venture. The venture’s individual partners were registered with SAM, but the venture itself was not. The agency found the protester ineligible due to lack of SAM registration. The protester argued the agency should’ve have raised the SAM issue during discussions. The court wasn’t convinced. If the agency had given the protester a chance to resolve the SAM issue during discussions, then it would have waived a solicitation requirement it didn’t have discretion to waive.
Thalle/Nicholson Joint Venture v. United States, COFC No. 22-755
Background
The Army Corps of Engineers posed a solicitation for repair and modification of a spillway. The solicitation incorporated FAR 52.204-7. That provision states than an offeror must be registered in SAM when submitting an offer or quotation.
Three offerors, including Thalle/Nicholson Joint Venture, submitted proposals. Thalle/Nicholson was a joint venture consisting of Thalle Construction and Nicholson Construction. The Corps evaluated Thalle/Nicholson’s proposal conducted multiple rounds of discussions. Before making award, the Corps called Thalle’s President to ask if the joint venture was registered with SAM. The President said Thalle and Nicholson were both registered with SAM but the joint venture itself was not.
In light of this information, the Corps notified Thalle/Nicholson that it was no longer eligible for award. The Corps reasoned that as the actual offeror, the joint venture itself, had to be registered with SAM.
Thalle/Nicholson filed a protest with the Court of Federal Claims. The JV argued that the Corps should have identified the SAM issue during discussions.
Analysis
Standing
The government argued Thalle/Nicholson lacked standing to protest. The government reasoned that because Thalle/Nicholson didn’t register with SAM it was not eligible for award and thus did not have a substantial chance of receiving award.
But the court found that Thalle/Nicholson had standing. Thalle/Nicholson’s protest alleged the Corps should have raised the SAM issue in discussions and allowed the company to address the issue. If Thalle/Nicholson succeeded on this argument, it would have a substantial chance of receiving award. Indeed, Thalle/Nicholson had the highest-rated proposal.
Responsibility Determination
Thalle/Nicholson contended that SAM registration is a responsibility determination. Responsibility determination are not made until the time of award. Until that point, an offeror can provide responsibility determination. Thus, Thalle/Nicholson argued, it should’ve been allowed to correct this defect up until award.
The court opined that it didn’t need to decide whether SAM registration was matter of responsibility or responsiveness. The plain language of the solicitation required SAM registration at when a proposal was submitted. If an offeror was not registered with SAM when it submitted, then a determination of non-compliance is unavoidable.
Even if SAM registration was a matter of responsibility, the Corps had given Thalle/Nicholson a chance to show registration before award. The JV was still unable to demonstrate registration.
Discussions
The court was also not persuaded the Corps was obliged to raise the SAM issue in discussions. If the Corps had allowed Thalle/Nicholson to register with SAM and fix the problem, it would have amounted to a waiver of FAR 52.204-7. Nothing in that provision allows the agency discretion to determine the point at which an offeror is registered with SAM. In fact, allowing an agency to waive FAR 52.204-7 would disregard 2018 amendments to the rule that removed an agency’s discretion to determine the time of registration.
Thalle/Nicholson is represented by Jacob W. Scott, Lochlin B. Samples, and Shoshana E. Rothman of Smith Currie & Hancock LLP. The intervenor, Shimmick Construction, is represented by Giovanni M. Ruscitti and Benjamin F. Silfen of Berg Hill Greenleaf Ruscitti. The government is represented by Brendan Jordan of the Department of Justice and Jennifer Dorsey of Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
