The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month. Below, Crowell Consultant Cherie Owen discusses GAO’s decision in Metris LLC, in which GAO sustained a protest challenging agency corrective action.
GAO did not sustain any protests in the month of February. Such is the ebb and flow of bid protests: January saw several protest sustain decisions, while February saw none. Therefore, this month’s Sustain of the Month post discusses an interesting GAO sustain decision issued in January. (Check out this post discussing January’s Sustain of the Month.)
In Metris, the United States Coast Guard had selected Metris as the awardee for a contract to provide training and related services. A disappointed offeror protested, alleging that Metris was ineligible for award because its System for Award Management (“SAM”) registration had lapsed for 13 days after Metris’ initial proposal submission but prior to the submission of its revised proposal. In response to the disappointed offeror’s protest, the Coast Guard decided to take corrective action in the form of canceling the award, disqualifying Metris, and making a new award decision. Metris protested the corrective action, arguing that it was unreasonable because the relevant regulation required only that offerors be continuously registered in SAM from the time of submission of revised proposals. GAO agreed and sustained the protest, holding that under the requirements of 52.204-7(b)(1) applicable at the time, and pursuant to the definition of an “offer” in FAR 2.101, Metris’ submission of a final proposal revision demonstrated its intent to modify or replace its initial offer, thus extinguishing the ability to accept the earlier offer. As such, the continuous registration requirement was applicable to the time between submission of the final revised proposal and award. Therefore, the Coast Guard’s attempt to eliminate Metris’ proposal based upon a lapse of SAM registration occurring after its initial proposal submission but before the final proposal revision was improper.
Importantly, GAO noted that the SAM registration requirements have since been amended to provide that an offeror’s failure to maintain SAM registration during the period between proposal submission and contract award does not render an offeror ineligible for award. (We discussed this change here.) However, this sustain decision is nevertheless significant, as it demonstrates the importance of challenging agency notices of corrective action in situations where they impact your company’s award or ability to compete. In Metris, GAO specifically addressed the timing of such protests, noting that the Agency’s notice of corrective action indicated unequivocally that it intended to terminate the award to Metris and disqualify Metris from the competition. Therefore, the time was ripe for filing a protest of that action—Metris was not required to wait until the Coast Guard “actually took action to cancel the award.”
The Metris decision provides a reminder that companies should be ever-vigilant for agency actions that impact their award—and should contact their counsel as soon as they become aware of agency actions that impede their ability to compete or impact their ability to obtain an award.