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FAR 2.101: Definitions; Online Representations and
Certifications Application (ORCA) |
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Comptroller
General - Key Excerpts |
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Where a bidder or offeror
represents that it will furnish end products of the United
States or designated countries, it is obligated to comply with
that representation. Leisure-Lift, Inc., B‑291878.3, B-292448.2,
Sept. 25, 2003, 2003 CPD para. 189 at 8. That is, where a bidder
or offeror leaves the certificate blank and does not exclude any
end product from the certificate, and does not otherwise
indicate that it is offering anything other than a TAA-compliant
end product, acceptance of the offer will result in an
obligation on the offeror’s or bidder’s part to furnish a TAA-compliant
end product. See Aesculap Instruments Corp., B-208202, Aug. 23,
1983, 83-2 CPD para. 228 at 3 (involving similarly worded Buy
American certificate). Under such circumstances, the agency can
rely upon an offeror’s representation/certification of
compliance with the TAA unless the agency has reason to believe,
prior to award, that the offeror will not provide a compliant
product. See Leisure-Lift, Inc., supra. In this case, CDWG
expressly declined to provide the required certification and
thus did not expressly bind itself to provide a TAA-compliant
end product as required by the solicitation. That is, as noted
above, CDWG stated on the ORCA, which it incorporated by
reference in its proposal, that it had “elected not to complete”
the Trade Agreements Certification and that it was required to
provide information regarding this provision with its proposal.
AR, Tab I, CDWG ORCA Public Certification, at 19. However, CDWG
did not supplement this certification in its proposal, or
otherwise, with regard to this acquisition. Moreover, FPI did
not ask CDWG to supplement this uncompleted certification at any
time prior to award, even though it affected CDWG’s obligation
to provide a TAA-compliant end product; nor did the agency ask
whether CDWG’s offered product would comply with the TAA.[10]
Award may not be based upon a proposal, where, as here, the
offeror declines to certify compliance, as required, with a
material term of the solicitation, in this case the TAA, such
that the proposal consequently fails to establish a legal
obligation to comply with that material term. See Automatics
Ltd., B-214997, Nov. 15, 1984, 84‑2 CPD para. 535 at 2. The
prejudice in this case of not requiring this certification prior
to award is obvious, given that CDWG delivered thin clients
marked “Made in China” that apparently do not comply with the
TAA. (Wyse Technology, Inc.,
B-297454, January 24, 2006) (pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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Wyse Technology, Inc., B-297454,
January 24, 2006 (pdf) |
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U.
S. Court of Federal Claims - Key Excerpts |
Section K of the solicitation
includes FAR § 52.204-8 which addresses annual
representations and certifications. AR at 64 (solicitation,
Section K). FAR § 52.204-8 provides that where, as here, FAR § 52.204-7 is not included in
the solicitation, the offeror must either “complete the individual representations
and certifications in the solicitation” itself, FAR § 52.204-8(b)(2)(ii), or complete the
annual representations and certifications online via the Online Representations and
Certifications Application (ORCA) website at http://orca.bpn.gov, FAR § 52.204-8(b); see AR
at 64 (solicitation, Section K, containing FAR § 52.204-8). If an offeror chooses to
utilize the online option, the offeror is directed to notify the government of its mode of
submission by checking the box contained in Section K of the solicitation indicating that
“Paragraph (b) applies.” AR at 64. The relevant portion of FAR § 52.204-8, as in effect
during the procurement process, is as follows:
(a) . . . (2) If the clause at 52.204-7 is not included in this
solicitation, and the offeror is currently registered in [Central Contractor
Registration], and has completed the ORCA electronically, the offeror may choose to
use paragraph (b) of this provision instead of completing the
corresponding individual representations and certifications in the
solicitation. The offeror shall indicate which option applies by checking one of the
following boxes:
[ ] (i) Paragraph (b) applies.
[ ] (ii) Paragraph (b) does not apply and the offeror has
completed the individual representations and certifications in
the solicitation.
(b) The offeror has completed the annual representations and
certifications electronically via the Online Representations and Certifications
Application (ORCA) website at http://orca.bpn.gov. After reviewing the ORCA
database information, the offeror verifies by submission of the
offer that the representations and certifications currently posted
electronically . . . are current, accurate, complete and applicable to this solicitation
. . . .
FAR § 52.204-8; see AR at 64 (solicitation, failing to indicate
inclusion of FAR § 52.204-7). In its proposal, Hawk checked the box indicating that paragraph
(b) of FAR § 52.204-8 applied. AR at 730. Hawk also checked the
representation set forth at section K-6 of the proposal. AR at 731. Moreover, in his request for
permission to award the contract to Hawk, the contracting officer states that he
reviewed Hawk’s annual representations and certifications and found them to be
complete. AR at 745 (Prenegotiation Objective Memorandum). From the record, it
appears to the court that Hawk did provide certifications and representations required by
the solicitation, and any error in not having an online record of Hawk’s certifications
and representations is harmless. (Precision
Standard, Inc., v. U. S., and Hawk Enterprises, LLC., No.
05-1125C, Filed: February 27, 2006) (pdf) |
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U.
S. Court of Federal Claims - Listing of Decisions
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For
the Government |
For
the Protester |
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Precision Standard, Inc., v. U. S.,
and Hawk Enterprises, LLC., No. 05-1125C, Filed: February
27, 2006 (pdf) |
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