Solicitations for federal contracts and their included Federal Acquisition Regulation (FAR) clauses often direct contractors to complete representations and certifications relevant to the acquisition. Depending on the solicitation, contractors may have to complete and maintain certain representations and certifications in the System of Award Management (SAM) website or attach them to their proposals. Consequently, an offeror’s failure to complete or attach the required representations and certifications may lead to the rejection of its proposal for failing to follow solicitation instructions. When reviewing an agency’s rejection of a proposal as noncompliant for not completing or attaching the required representations and certifications, protest adjudicative forums such as the Government Accountability Office (GAO) will typically examine the record to determine whether the agency’s decision was reasonable and per the solicitation criteria and applicable statutes and regulations. Contractors in such situations should be mindful that if the solicitation does not expressly require the submission of certain representations and certifications with the proposal, the procuring agency may not then use the failure to attach those representations and certifications as a basis for rejecting their proposals.

In B-422751; B-422751.2, a protest decision issued on October 11, 2024, the GAO sustained a bid protest alleging that the Department of Veterans Affairs (VA) improperly rejected the protestor’s proposal as unacceptable for not attaching copies of two representations. The solicitation was issued to acquire home oxygen services for VA’s Veterans Medical Center patients in Birmingham, Alabama. The best-value solicitation contemplated an evaluation utilizing FAR part 15 procedures with the consideration of experience and price factors. Prospective offerors were put on notice that their proposal may be rejected for a failure to comply with all criteria set forth by the solicitation or submit all requested documentation. The request for proposal (RFP) included several standard representations and certifications, including the provision at FAR 52.209-7, which requires offerors with federal contracts over $ 100,000 to disclose certain legal proceedings by inputting the relevant information in the FAPIIS database through maintaining an active SAM registration. Furthermore, the RFP included the provision at FAR 52.204-24, instructing offerors to leave incomplete the representation at paragraph (d)(1) of the provision if they represent that they do not provide or use covered telecommunications equipment or services listed in ¶ (v)(2)(i) of the provision at FAR 52.212-3. Notably, the solicitation did not expressly require these two representations to be attached to the proposal. Finally, the RFP also included the mandatory provision at FAR 52.204-7, which notifies offerors of the requirement to maintain an active SAM registration until the time of award, during performance, and through final payment of the contract.

During proposal evaluation, the VA contracting officer (CO) conducted an initial compliance review to determine whether proposals included a copy of the offeror’s completed response to the representations and certifications required by FAR 52.209-7 and 52.204-24. While the protestor’s proposal did not include copies of these representations, the protestor had completed these representations and certifications on SAM as of the proposal’s due date. The CO had even retrieved the protestor’s SAM.gov records for the initial compliance review. However, despite this, the VA rejected the protestor’s proposal for failing to attach the representations and certifications required by FAR 52.209-7 and 52.204-24. Upon receiving the rejection notice, the protestor filed a protest at the GAO. Among other protest arguments, the protestor alleged that it had provided its responses to the representations and certifications at issue in SAM and that the agency rejected its proposal improperly based on unstated evaluation criteria. In response, the VA simply took the position that the RFP had expressly directed offerors to provide “all documentation requested,” even warning offerors that a failure to do so would result in exclusion from further evaluation. Thus, the protestor’s proposal was rejected because it did not have attached to it, the protestor’s responses to representations and certifications in FAR 52.209-7 and FAR 52.204-24 – which, according to the VA were a part of “all documentation requested” by the RFP.

However, the GAO found it unpersuasive that by requiring offerors to submit “all documentation requested,” the VA had also required offerors to attach responses to the representations and certifications at issue. The GAO explained that the agency’s position was inconsistent with the RFP’s plain language, which specifically instructed offerors to submit certain other documentation with their proposals. Such a broad interpretation of the RFP requirements would also render superfluous the establishment of SAM.gov as an electronic repository of offerors’ responses to representations and certifications of FAR 52.209-7 and FAR 52.204-24. The GAO also rejected the VA’s distinction between an initial compliance review and the overall evaluation. It reasoned that since the solicitation did not indicate to offerors that the agency would perform an initial compliance review, the rejection of the protestor’s proposal based on this superficial review instead of the evaluation factors identified in the RFP was improper. Consequently, the protest was sustained on the basis that the VA rejected the protestor’s proposal based on unstated evaluation criteria.

In responding to solicitations that are unclear on whether responses to certain representations and certifications must be attached to the proposal or completed in SAM, offerors should seek early clarification from the government to avoid being rejected for failing to submit required documentation. Contractors should be mindful that a failure to submit required documentation is not a responsibility-related consideration but rather a proposal acceptability issue, especially when the solicitation expressly notifies offerors that non-submission of the required information would result in the rejection of their proposal. Therefore, small business contractors should be aware that agencies are not required to refer such rejections to the SBA under its certificate of competency (COC) program, which usually requires federal agencies to refer determinations of non-responsibility for small businesses to the SBA when denying an award on the basis of non-responsibility. When a proposal is rejected for failing to attach representations and certifications that the offeror maintains in SAM, the rejected offeror should review the solicitation to check if the relevant provisions specifically required the representations and certifications in question to be attached to the proposals. If not, offerors excluded on this basis may challenge their rejection as improper and based on unstated criteria.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.