Construction Law

Missing Information in Electronic Database Not Fatal To Offeror

By Michael Payne

As Federal government contractors know all too well, Federal procurement has entered the electronic age in a big way.  Not only are solicitations advertised solely through the internet at http://www.fedbizopps.gov, prospective contractors must be registered with another website, FedTeDS, www.fedteds.gov, in order to access plans, specifications and amendments electronically.  Prospective contractors must also be registered with the Central Contractor Registration site, www.ccr.gov, to be eligible to access FedTeDS. The Federal Acquisition Regulation, at FAR 4.1201, now provides that "Prospective contractors shall complete electronic annual representations and certifications at http://orca.bpn.gov. Instead of submitting executed Representations and Certifications with bids and proposals, prospective contractors can choose to rely on their electronic versions, FAR 52.204-8, in order to comply with the requirements of any particular solicitation.  However, what is the effect on a bidder or offeror's status if the information in the electronic file is wrong, missing, or incomplete? Is the bidder/offeror considered nonresponsive and is its bid/offer rejected?

In a recent decision of the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the Comptroller General found that the awardee’s failure to list NAICS code 541513 in its ORCA certifications did not render the proposal nonresponsive.  The GAO concluded that additional information was also available to the Contracting Officer and found that additional information made it reasonable for the Contracting Officer to conclude that the offeror met the small business size standard for the solicitation.  This is consistent with other GAO decisions that have repeatedly held that “the failure to include with a bid completed standard representations and certifications does not render the bid nonresponsive because it does not affect the bidder’s material obligations.  Such a failure therefore may be waived as a minor bidding irregularity and the information may be furnished after bid opening.

Full post as published by Federal Construction Contracting Blog on September 12, 2007 (boomark / email).