Under the FAR, a prospective bidder must generally be registered in SAM at the time it submits its offer under a procurement.
What happens, though, if a bidder goofs this requirement, and isn’t registered in SAM?
A recent GAO decision shows that, in certain circumstances, an agency might allow a bidder to cure a defective SAM registration before award.
The facts of this GAO decision—Jade Excavation, Inc., B-419515 (Mar. 18, 2021)—are pretty straightforward. The Federal Highway Administration issued a request for bids (under FAR Part 14’s sealed bidding procedures) for paving work in Oregon, in October 2020. When the agency opened bids the following month, York Bros Excavation was deemed the low bidder.
Before the award was official, the agency checked the SAM database and found no record for York. York then told the agency that it had previously submitted a request to update its SAM records, which was still pending.
About a week later, York’s request was approved, the agency confirmed York’s SAM profile was active, and then made the award.
Jade Excavation—the second-lowest price offeror—protested the award. Because the invitation for bids and the FAR required York to have a valid SAM profile at the time it submitted its bid, Jade argued that the agency should have rejected York’s bid.
GAO denied Jade’s protest.
FAR part 14 requires an agency to allow a bidder the opportunity to cure matters that don’t impact the material obligations of the bid. Such “material obligations” generally include the price, quantity, quality, or delivery terms outlined in the bid. A SAM registration, on the other hand, is not a material obligation of the bidder; instead, it is a matter concerning the bidder’s responsibility. Thus, under FAR part 14, the agency was compelled by the FAR to allow York to cure this issue.
Jade Excavation is an interesting decision, in a line of decisions addressing the SAM registration requirement. I worry, though, that it might lull contractors into a misplaced sense of complacency when it comes to SAM registrations. In this regard, this decision was specifically issued under FAR part 14’s sealed bidding procedures. Under FAR part 15, an agency doesn’t generally have the same command to allow an offeror to fix minor clerical errors in a proposal; instead, it’s a discretionary action by the agency.
As a matter of best practice, it’s still best to heed the FAR’s instructions. Contractors must ensure that they have a valid SAM registration in place at the time they submit their bid. Moreover, the FAR also requires offerors to ensure that their SAM representations and certifications “are kept current, accurate, and complete.” Therefore, contractors should routinely review their SAM profiles, and update them as needed.
One more thing: it doesn’t cost money to register in SAM, so don’t fall for schemes to the contrary. Rather, a great resource to help with SAM registrations is your local Procurement Technical Assistance Center.
If you have any questions about SAM registrations or bid protests, please give me a call.