Does certification of provisions/clauses in SAM make them apply if left out of the solicitation?

[Boof]

I would like an opinion from my esteemed collegues.   I just realized that contractors have to certifiy they have read a whole list of provisions (some are clauses) when registering in SAM.  Once registered, can we then hold them reponsible if accidently left out of a solicitation?  One step further - if answering an outside audit that we did not have the provision in the solicitation - can we cite SAM to say it was required so not important that it was not in the solicitaiton/contract.   SAM says: (only partial list of provisions). 

"I have read each of the FAR and DFARS provisions presented on this page. By submitting this certification, I,  , am attesting to the accuracy of the representations and certifications contained herein, including the entire NAICS table. I understand that I may be subject to criminal prosecution under Section 1001, Title 18 of the United States Code or civil liability under the False Claims Act if I misrepresent   in any of the above representations or certifications to the Government.

READ ONLY PROVISIONS - The following FAR and DFARS provisions are provided for you to read. They do not require completion of any data. Select the provision number to expand and review the full text. When certifying to the information on this page, you are also certifying that you have read each one of these provisions.

	FAR 52.203-11: Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions

FAR 52.222-50 Combatting Trafficking in persons FAR 52.222-56 Certification Regarding Tafficking in Persons
	FAR 52.223-1: Biobased Product Certification

	FAR 52.225-20 Prohibition on Conducting Restricted Business Operations in Sudan-Certification"

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[Guest Vern Edwards]

36 minutes ago, Boof said:

I just realized that contractors have to certifiy they have read a whole list of provisions (some are clauses) when registering in SAM.  Once registered, can we then hold them reponsible if accidently left out of a solicitation?  One step further - if answering an outside audit that we did not have the provision in the solicitation - can we cite SAM to say it was required so not important that it was not in the solicitaiton/contract.   SAM says: (only partial list of provisions). 

Boof:

That is not clear to me. What do you mean by "hold them responsible"?

[Todd Davis]

I don't believe the fact that some reps and certs are listed in SAM automatically incorporates them into a solicitation or resultant contract.  Instead, it is the use of the appropriate provisions listed in the solicitation that incorporates specific provisions, which may include those completed in SAM.

Solicitations for other than commercial items use provision  52.204-8, Annual Representations and Certifications.  When provision  52.204-7, System for Award Management, is also used, paragraph (d) of the -8 provision applies.  It states that the reps and certs in SAM "as of the date of this offer..." "are incorporated in this offer by reference."  The provision allows the offerors the opportunity to submit changes in writing with the offer to what is listed in SAM at the time the offer is submitted.

Commercial item solicitations use 52.212-3 Offeror Representations and Certifications—Commercial Items.  Paragraph (b)(2) of that provision has the same language.  The provision also allows the offerors the opportunity to submit changes in writing with the offer to what is listed in SAM at the time the offer is submitted.

Also, it is the use of clause 52.204-19 Incorporation by Reference of Representations and Certifications, or 52.212-4 Contract Terms and Conditions—Commercial Items, (paragraph v) that incorporates the reps and certs into the resultant contract.

[Boof]

Vern,

I mean by held responsible that it would act like the Christian Doctrine.  If they certify they have read the provisions/clauses on the list then it applies even if it is accidently left out of the solicitaion.  For instance, 52.222-56 requires the contractor to submit a specific certification before award.  Can we expect them to provide this certification even if the CO forgot to put that provision in the solicitation.  They did certify they knew the requirement for it.   

Or would a solicitation amendment be the only solution. 

Now I realize that making an amendment to correct ones own mistake  is not that big a deal but I was curious what everyone thought about this idea of using SAM certifications as a crutch.  I never really realized how many provisions/clauses the contractors were reading or agreeing to by submitting a SAM registration until today.

Todd,  you make a good point that unless 52.204-7 and -8 (or thier commercial item equivelents) are in the contract, the SAM certs don't apply. 

   

[Guest Vern Edwards]

Boof:

I don't know the answer to your question. Sorry.

[C Culham]

Boof –

First like Vern I am confused by your questions in your posts as they suggest different scenarios at least by my read.

So thinking about the thread in total here is my shot at providing an answer….

Solicitation provision left out of the solicitation and is recognized before award by the agency, should the RFP be amended?   Yes, FAR 15.206.

Solicitation provision left out of the solicitation and is recognized before award by the agency, yet an offeror has completed an annual reps and certs in SAM and the specific provision was in their annual reps and certs yet the certification was not provided, should the RFP be amended and can the agency request the offeror to provide the certification post receipt of proposals.   Yes, the RFP should be amended, again FAR 15.206, with it also my conclusion that even absent an amendment the offeror could provide the required certification prior to award.  See http://www.wifcon.com/pd144042a.htm and specifically "Charter Environmental".

An agency should always amend their solicitation if they find that they failed to include a term/condition that should have been included.   However when it comes to reps and certs failure to provide by a offeror  have been found to be a minor irregularity that can be corrected after receipt of proposals.  Suggesting  that simply depending on SAM or in other words using it as a “crutch” is a sideways approach where it has otherwise been established through what I will term case law to handle failure to provide a cert/rep as a minor irregularity and get the certification after receipt of proposal.  The dilemma will come if prior to or even after award could you "demand" the certification.  I say yes you could and if the contractor failed to provide it would be reason to not award if the demand is not met, and if after award would be reason for the agency to terminate the contract for convenience.  The latter is based on the fact that an agency would have errored in awarding for failure to determine the responsibility of a contractor.  

[Guest Vern Edwards]

Quote

The dilemma will come if prior to or even after award could you "demand" the certification.  I say yes you could and if the contractor failed to provide it would be reason to not award if the demand is not met, and if after award would be reason for the agency to terminate the contract for convenience.  The latter is based on the fact that an agency would have errored in awarding for failure to determine the responsibility of a contractor.

Carl:

Would failure to obtain the certification render the award improper? If so, would a demand for the certification constitute discussions? If so, would such discussions with the prospective or actual awardee be improper discussions?

[C Culham]

1 hour ago, Vern Edwards said:

Carl:

Would failure to obtain the certification render the award improper? If so, would a demand for the certification constitute discussions? If so, would such discussions with the prospective or actual awardee be improper discussions?

Yes, FAR 22.1703, 1704, and 1705 when read together requires that the offeror shall provide the certification of 52.222-56 prior to award.

The demand would not constitute discussions but rather is the exercise of a right of the Government to request the certification.   As a post proposal certification prior to award has been deemed by the GAO to be an effort to correct a minor irregularity doing so is not discussions it is clarification.  (FAR 15.306).  

 

[Guest Vern Edwards]

Thanks, Carl.