Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, April 10, 2013, 8:05am EST
Government Acquisitions, Inc.; PCi Tec, Inc., B-407877.2, -.3, -.4, March 25, 2013
Solicitations often require offerors to meet a certain certification requirement in order to be eligible for award. Almost as often, a question arises as to when the offerors are actually required to meet the certification requirement—at time of solicitation, at time of award, or some other time altogether. This issue recently came up in GAO’s decision in the protest of Government Acquisitions, Inc.; PCi Tec, Inc.
This protest resulted from a Request for Quotations issued by the Internal Revenue Service for the establishment of a blanket purchase agreement for computer equipment and accessories. The RFQ stated that quotations were to be evaluated on both price and non-price factors, with one of the non-price factors being socio-economic status. Specifically, HUBZone small businesses were to receive an “Excellent” rating on the socio-economic factor, SDVO small businesses would receive a “Good,” all other small businesses would receive a rating of “Acceptable,” and large businesses would receive a “Neutral” rating. The RFQ stated that HUBZone contractors had to be certified by the SBA “at the time of solicitation and at time of award.”
The awardee, Signet Computers, Inc., was not certified as a HUBZone at the time the RFQ was issued. However, Signet became HUBZone certified prior to the extended closing date for submission of quotations, and notified the agency of its change in status. In its evaluation of Signet’s proposal, the agency considered Signet as a certified HUBZone small business, and gave it the maximum rating on the socio-economic factor. The protesters challenged the agency’s evaluation, arguing that Signet did not meet the RFQ’s requirement to be certified “at the time of solicitation,” and thus should not have been considered a HUBZone small business for this procurement.
GAO rejected this argument, noting that the phrase “at the time of solicitation” was vague* and supported more than one reasonable interpretation. GAO agreed with the agency that the phrase “at the time of solicitation” could reasonably be interpreted as meaning at any time while the solicitation was open, i.e., until the due date for quotations. In a slightly amusing twist, the agency also argued that to require the certification at the time the RFQ was issued would be unduly restrictive of competition, which is an argument usually made by protesters challenging a certification requirement in a solicitation. In any event, GAO found that the agency’s interpretation was reasonable, and denied the protest.
*GAO also noted that because the ambiguity was obvious, any challenge to its terms must have been raised prior to the deadline for submissions. Any later protest asserting that one possible interpretation is the only permissible interpretation will be dismissed as untimely.