Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Preaward/Postaward Requirements
General Counsel P.C. Highlight: Usually, a certification requirement listed in the Performance Work Statement (PWS) in an RFP may be satisfied after award and prior to the beginning of performance and is not a precondition to submitting a proposal.
Nilson Van & Storage, Inc. (Nilson) protests the award of a contract, under an invitation for bids (IFB), issued by the Department of the Army (Army), for the preparation, shipment and/or storage of personal property of Department of Defense personnel.
The performance work statement (PWS) of the IFB advised bidders that “prospective contractors” engaged in interstate transportation “shall be approved and hold authorization in their own name by the Interstate Commerce Commission, or, if engaged in intrastate transportation, a certificate issued by the appropriate state regulatory body will be required.” The IFB also provided that Federal Acquisition Regulation (FAR) §52.247-2, which provides that the “offeror shall furnish to the Government, if requested, copies of the authorization before moving the material under any contract awarded,” was applicable.
Nilson argues that the awardee is not eligible for award because it does not have Interstate Commerce Commission or Department of Transportation approval as a “for hire carrier,” and does not have approval, either federal or state, for the transportation of household goods, as required by the IFB. Nilson’s argument is based on its interpretation of the IFB that bidders were required to possess the authorizations prior to receiving award. GAO does not agree with this interpretation; rather, it states that the IFB made the authorization requirement applicable only to the awardee, and only after the award. The requirement was set forth in the PWS, the portion of the IFB that established the requirements that the contractor must meet in performing the contract. The requirement also applied to “prospective contractors,” not to bidders, another indication that the requirement was part of contract performance. The requirement applied to the contractor, rather than to all bidders, and thus was not intended as a prerequisite to receiving award. The protest is denied.