Link: GAO Opinion
Agencies: Department of Agriculture
Disposition: Protest dismissed.
Keywords: State and local requirements; Permits and responsibilities
Solar Plexus, LLC (Solar) protested the awarding of a contract by the Department of Agriculture, U.S. Forest Service, under a request for proposals (RFP) for the supply and installation of three separate solar-powered systems in Missoula, Montana. The relevant RFP stated that the award would be made on the basis of the offer most advantageous to the government, price and other factors considered, and that technical factors and past performance, when combined, would be twice as important as price.
After the proposals were initially evaluated, the contracting officer established a competitive range consisting of the five highest-rated proposals, including the proposals submitted by Solar Plexus and Oasis Montana. The contracting officer then conducted discussions with these five firms. After reviewing the offerors’ responses to the discussion questions, the offerors were then ranked, with the two highest-rated firms (one of which was Oasis Montana) receiving equal ratings. Of the two highest-rated firms, Oasis Montana submitted the lower price, and the award was made to Oasis Montana. In its notice to unsuccessful offerors, the Agency incorrectly stated the award amount. But the award amount was correctly stated when the award notice was posted on the FedBizOpps website. Solar Plexus then filed an agency-level protest, which was denied, followed by this protest to the GAO.
In this protest, Solar Plexus alleged that the award was improper because Oasis Montana is not a registered construction contractor and, according to Solar Plexus, Montana law requires a company to be registered as a construction contractor in order to complete the installation of the solar-powered systems sought under the RFP. Based on this argument, it was asserted that the award was therefore in violation of the RFP, which states that “[t]he Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.” Additionally, Solar Plexus points to the RFP’s “Permits and Responsibilities” clause, FAR § 52.236-7, which states that “[t]he Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.”
However, the GAO found that Solar Plexus’ arguments did not provide a basis to sustain the protest. Although the RFP calls for compliance with state law through its “Permits and Responsibility” and other similar clauses, normally, general solicitation provisions mandating that the “contractor” comply with the requirements of state laws, codes, and regulations do not require that a bidder or offeror demonstrate compliance prior to award. Rather, compliance with applicable state or local requirements is a contract performance or contract administration requirement that may be satisfied during contract performance and does not affect the contract award or contract formation decision. Oasis Montana’s compliance going forward was deemed to be a matter of contract administration and not contract formation, and therefore outside the bounds of GAO’s bid protest jurisdiction under GAO Rule 21.5(a).