Protester Booted for Not Properly Certifying Its Non-Use of Covered Chinese Telecommunications Equipment and Services; MicroTechnologies, LLC, GAO B-418700

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Protest challenging agency’s determination that proposal was unacceptable is denied. The agency rejected the protester’s proposal for failing to properly certify whether it would be using covered Chinese telecommunications equipment or services. The protester made a mistake in its proposal, checking the wrong box. The protester argued that the agency should have sought clarifications. GAO, however, found that the agency was not obligated to seek clarifications. The protester also alleged that the certification was not a material solicitation requirement. But GAO rejected this argument finding that certification, which certified compliance with procurement laws, was material.

The General Services Administration issued a solicitation to holders of GSA’s Veterans Technology Services 2 IDIQ contract. The solicitation contemplated the award of a task order for modernization, operation, and maintenance of computers and IT systems. The solicitation required offerors to affirmatively represent if they would, or would not, provide covered telecommunications or services in accordance with FAR 52.204-24. That FAR provision prohibits agencies from procuring telecommunications or services from certain Chinese companies—e.g., Huawei, ZTE Corporation. If a company certifies that they will use covered equipment or services, they must provide additional information to the agency.

MicroTechnologies, LLC (MicroTech) submitted a proposal in response to the solicitation. MicroTech indicated in its proposal that it would use covered Chinese telecommunications equipment or services. But MicroTech did not provide the additional disclosures they were required to submit if using covered equipment or services. GSA found MicroTech ineligible for award. MicroTech protested.

MicroTech claimed that it had inadvertently checked the wrong box regarding its use of covered telecommunications equipment and services. It had meant to certify that it would not be using covered equipment and services but had mistakenly checked the box affirming they would be using such equipment and services. That is why its proposal did not include the additional required disclosures. MicroTech argued that its mistake was evident from the face of its proposal. Accordingly, the company contended, GSA should have sought clarifications to clear things up.

But, GAO reasoned, agencies have broad discretion in seeking clarifications, and offerors have no automatic right to clarifications. Thus, even if the error was evident from the face of MicroTech’s proposal, given GSA’s broad discretion, GAO had no basis to question the agency’s actions. Indeed, GAO did not even believe the mistake in MicroTech’s proposal was that evident. It was not clear whether MicroTech had checked the wrong box or whether it planned to use the covered equipment and just neglected to provide the additional information.

MicroTech also argued that the rejection of its proposal was contrary to the terms of the solicitation. The certification was not included in the solicitation’s pass/fail criteria and was not stated in the evaluation criteria. Thus, it was unreasonable for GSA to find that the MicroTech had failed to satisfy a material solicitation requirement.

But GAO found that the solicitation expressly required offerors to make a representation concerning their use of covered equipment or services. This did not concern some superficial requirement; rather, it concerned whether MicrorTech’s proposal complied with procurement laws. Because MicroTech did not provide information required by the solicitation, GSA was unable to assess whether it met baseline requirements for the task order. GSA’s unacceptability determination was unobjectionable.

Lastly, MicroTech contended that it proposal should not have been rejected before it had a chance to make an oral technical presentation to GSA. The agency could have then sought clarifications during the presentation. GAO, however, reasoned that it already found that GSA was not obligated to seek clarifications. Thus, there was no separate obligation for GSA to seek clarifications during the oral presentation phase.

MicroTech is represented by Aron C. Beezley, Patrick R. Quigley, Sarah S. Osborne, Lisa A. Markman, and Nathanial J. Greeson of Bradley Arant Boult Cummings LLP. The agency is represented by Kelli Cochran-Seabrook of the General Services Administration. GAO attorneys Michael P. Grogan and Edward Goldstein participated in the preparation of the decision.

GAO - MicroTechnologies, LLC