Wednesday, May 31, 2017

Pre-award Requirement or Contract Administration Matter

In 2016, the U.S. Marshals Service (USMS) issued a solicitation for towing, storage, maintenance, and disposal services for seized and forfeited vehicles. Contract award was contingent on a responsible offeror submitting an offer that conformed in all aspects to the solicitation requirements and also determined to be most advantageous to the Government, price and other factors considered. The solicitation also included a statement of work that required the winning bidder to provide evidence that it has complied with all laws and ordinances associated with vehicle storage.

Ultimately, the USMS received four proposals including ones from Flynn Jensen and Vintage Autoworks. After evaluating the proposals, the USMS awarded the contract to Vintage. Flynn filed a bid protest with the United States Court of Federal Claims stating stating that Vintage was in noncompliance with the solicitation's requirements because the subcontractor where Vintage proposed to store the vehicles was not zoned for storage nor was it licensed to hold public auctions.

The USMS argued that its decision to award the contract to Flynn was supported by the administrative record because the solicitation did not require offerors to submit permit or license information as part of their proposals. Agencies are required to evaluate proposals using only stated evaluation criteria so it would have been a violation of the law for the contracting officer to deem Flynn as not responsible based on unstated evaluation criteria regarding licenses and permits.

Although the statement of work requires the contractor to provide evidence that it has complied with all laws and ordinances associated with vehicle storage, nothing therein supports the argument that this was a pre-award requirement.

Therefore, whether Flynn obtained the required permits is a matter of contract administration that exceeds the bid protest jurisdiction. Once a contract has been awarded, the administration of the existing contract is within the discretion of the agency and disputes are resolved under the contract disputes clause and the Contract Disputes Act.

The Federal Court of Claims ruled that Vintage has not met its burden to identify record evidence showing error in the contracting officer's responsibility determination and therefore was not entitled to injunctive relief.

Although this bid protest was filed with the Federal Court of Claims, the GAO (Government Accountability Office) has rendered similar decisions - if something is not specifically listed as one of the evaluation criteria, it cannot be used to evaluate offers.

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