Link: GAO Opinion
Agency: Department of Housing and Urban Development
Disposition: Protest denied.
Keywords: Joint Venture
General Counsel P.C. Highlight: An offeror is affirmatively responsible for demonstrating in its proposal that it meets all the stated RFP requirements.
American Title Services, (ATS), a joint venture, protests the rejection of its proposal and the award of contracts, by the Department of Housing and Urban Development (HUD), under a request for proposals (RFP), for real estate closing services. ATS was a joint venture consisting of a properly licensed California closing company and a Colorado company not licensed in California. The proposal stated that the Colorado company would control the joint venture exclusively.
The RFP sought offers for closing agent services for two areas of northern California. Offerors were informed that the agency would award a contract for each area to the offeror submitting the lowest-priced, technically acceptable proposal. The following non-price factors were identified: licensing/insurance, prior experience, past performance, qualifications of proposed staff, management capability, and quality control.
For the licensing/insurance factor, offerors were instructed to demonstrate their ability to perform and manage the work to be performed for each geographic area. At a minimum, offerors were required to describe, and submit copies of, applicable California law with respect to licensing and permits to perform real estate closings, and to discuss how the offeror satisfies California laws and requirements. The RFP also provided that the ability to satisfy the licensing requirements would be considered a definitive responsibility matter.
ATS’s proposal was considered technically unacceptable under the licensing/insurance factor, where the technical evaluation panel (TEP) found that ATS had not shown that it could perform closings in California.
The RFP here required offerors to affirmatively demonstrate their ability to legally perform real estate closings in California. In this regard, offerors were required to identify in their proposals applicable California law. The TEP found that ATS had not made such an affirmative showing in its proposal with respect to the joint venture itself. Specifically, the evaluators were concerned that ATS had not provided any information in its proposal “regarding how a Colorado joint venture controlled by a Colorado company could legally perform real estate closings under California law. ATS argued that HUD did not demonstrate that the joint venture, acting through its licensed California member, would be unable to legally perform closings in California. But GAO notes that the RFP required the offeror to make the affirmative showing and ATS did not do so in its proposal. The protest is denied.