Link: GAO Opinion
Agency: Department of Agriculture
Disposition: Protest denied.
General Counsel, P.C. Highlight: Awardee may correct and update expired ORCA certifications and representations after bid opening.
The Department of Agriculture issued an invitation for bids (IFB) to award a fixed-price services contract for the removal of tornado debris in Tennessee. The IFB was issued as a service-disabled veteran-owned small business (SDVOSB) set-aside. The solicitation included standard Federal Acquisition Regulation clauses requiring bidders to be registered in the Central Contractor Registration (CCR) and requiring bidders to have reviewed and completed the requirements on the Online Representations and Certifications Application (ORCA) website. Agriculture received 14 bids, 2 of which were Blackmon Companies’ (awardee) and Veterans Construction of South Carolina’s, with Blackmon submitting the low bid.
Following the award, Veterans complained to the contracting officer that Blackmon was not an SDVOSB concern. Following up on the complaint, the contracting officer found that Blackmon’s ORCA record had expired prior to bid opening. Blackmon’s CCR entry did not identify it as a SDVOSB but the VetBiz website did. The contracting officer submitted the SDVO protest to the SBA for resolution. Blackmon renewed its ORCA certifications and representations after the discovery and self-certified its SDVO status. Veterans protested the proposed award to Blackmon, arguing that the expiration of Blackmon’s ORCA record prior to the opening of the bid process rendered the firm’s bid nonresponsive.
A responsive bid is one that, if accepted by the government as submitted, will obligate the contractor to perform the exact thing called for in the solicitation. This determination is made at the time of bid opening from the face of the bid documents. In this case, GAO found that the failure of Blackmon to include completed standard representations and certifications with its bid did not render the bid nonresponsive because it did not affect the bidder’s material obligations. The applicable representations and certifications in Blackmon’s ORCA record related only to responsibility matters, which may be addressed after bid opening and did not reduce or modify Blackmon’s obligation to perform in accordance with the IFB. Accordingly, Veteran’s protest was denied.