The RFQ required that "a prospective awardee" be
registered in the CCR database "prior to award." The RFQ went on
to state that "[i]f the offeror does not become registered in
the CCR database in the time prescribed by the Contracting
Officer, the Contracting Officer will proceed to award to the
next otherwise successful registered Offeror." RFQ at 21.
Three quotations were received, but only the protester and the
awardee were found technically acceptable. The two vendors were
considered essentially equal in terms of past performance. Thus,
price became the determining factor and the agency decided to
make award to NISANT whose price was considerably lower than the
protester's.
Before making the award on September 30, the agency noted that
NISANT was not yet registered in the CCR database, although it
had a CCR registration pending. The agency determined that an
exception to the CCR registration requirement was applicable
under Federal Acquisition Regulation (FAR) sect. 4.1102(a)(5),
which provides for an exception to CCR registration for "[a]wards
made to foreign vendors for work performed outside the United
States, if it is impractical to obtain CCR registration." On
September 30, before making award, the agency completed a waiver
of the CCR registration requirement, which was approved at the
appropriate agency level, that certified that this was an award
made to a foreign vendor for work to be performed outside the
United States and that it was impractical to obtain CCR
registration prior to award. Agency Report, Tab 1, CCR
Registration Waiver (Sept. 30, 2010). The agency determined that
it was impractical to delay award pending the completion of
NISANT's CCR registration because the agency required the
uninterrupted delivery of these medical services, which were
scheduled to end on September 30. In addition, NISANT had
submitted the best value proposal whereas the protester's
proposal's substantially higher price could not be determined
fair and reasonable. Contracting Officer Statement at 2. The
agency made award to NISANT on September 30. This protest
followed.
The protester argues that NISANT was ineligible for award
because the firm was not registered in the CCR prior to award.
The solicitation did not require that contractors be registered
in the CCR prior to the submission of quotations, but rather,
required such registration prior to award. RFQ at 21; see
Charter Envtl., Inc., B-297219, Dec. 5, 2005, 2005 CPD para. 213
at 4 (bid cannot be rejected as nonresponsive on the basis that
the bidder had not yet registered in the CCR). While an agency
is generally obligated to ensure that prospective contractors
are registered in the CCR database before award, see FAR sect.
4.1102(a), the FAR provides a specific exception invoked by the
agency that covers the present situation. FAR sect.
4.1102(a)(5). The protester does not deny that the required
services could not be interrupted, but argues that award should
have been made to the next vendor in line for award, that is,
the protester. However, the regulations do not require this
course of action, but allow the agency to exercise its
discretion to make award to the best-value vendor, where, as
here, the conditions of this exception are satisfied. We
conclude that the protester has not shown that the agency's
determination, that it was impractical for the awardee to obtain
CCR registration prior to award, was erroneous. (Istituto
di Medicina del Lavoro- Archimede, B-404650, February 18,
2011) (pdf)
CCITE asserts that SIKU is ineligible to do business with
the government because its parent company, Harpoon Construction
Group, is not registered in the CCR database. The requirements
for registering in the CCR database are set out in Federal
Acquisition Regulation (FAR) subpart 4.11. Nowhere in that
subpart does the FAR require that a prospective contractor's
parent company be registered. Rather, the regulations pertain to
the offeror itself. See FAR sect. 4.1102(a) ("Prospective
contractors must be registered in the CCR database."); FAR sect.
4.1103(a)(1) (the contracting officer is to verify that the
prospective contractor is registered). As the protester
recognizes, the record here shows that SIKU is registered in the
CCR. While CCITE argues that the registration requirement should
be held to apply to SIKU's parent company, Harpoon, because SIKU
is a wholly-owned subsidiary of Harpoon, there is no support in
the applicable regulations for this position. (Computer
Cite, B-400830, February 3, 2009) (pdf) |
