Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Compliance with laws; contract administration
General Counsel P.C. Highlight: General solicitation provisions requiring the contractor to comply with the requirements of federal, state, and local laws, codes and regulations do not require that an offeror demonstrate compliance prior to award. Whether the products comply or not is a matter of contract administration.
The Department of Veterans Affairs (VA) issued a request for proposals (RFP) for closed-circuit electronic magnification devices (CCTVs) as a small business set-aside. The contract was to be a fixed-price requirements contract for a base year, with four one-year options. Freedom Scientific, Inc. (Freedom) protests the award of the contract to Enhanced Vision Systems, Inc. (Enhanced) based on the assertions that Enhanced did not meet technical requirements of the solicitation and that the products offered by Enhanced were not compliant with applicable Federal Communication Commission (FCC) regulations.
The solicitation stated that award would be made to the offeror whose proposal was considered “best value” based on numerous criteria, including certain technical factors such as picture quality and machine controls. The solicitation also required compliance with federal, state, and local laws.
Although the contracting officer determined that Enhanced’s proposal offered the best value, Freedom contends that Enhanced’s monitors did not meet the technical requirements because they lacked the required auto focus on/off feature. GAO reviews the record to determine whether the agency’s judgments were reasonable and consistent with stated evaluation criteria. In this case, the record showed Enhanced’s proposal included products that “generally meet and exceed the requirements” and the auto focus switch was easily accessible, provided rapid response, and responded instantly and quietly. GAO determined that the agency reasonably determined that the Enhanced products met the technical requirements.
As to Freedom’s assertion that Enhanced’s products did not comply with FCC requirements, and thus do not comply with federal, state, and local laws, GAO found that the solicitation clause regarding compliance was under the heading “Section C – Contract Clauses” and applied to the contractor. The RFP did not expressly require that offered products comply with FCC requirements as a precondition to award. Therefore, the protest was denied.