Decision Released: DHS ICE On-Site Medical Staffing Services protest sustainment

File No. B-422389.2

Digest

Protest that agency unreasonably found the protester was ineligible for task order award due to a temporary lapse in its System for Award Management (SAM) registration is sustained where the solicitation did not include Federal Acquisition Regulation provision 52.204-7 or otherwise notify offerors that they would be ineligible for award if their SAM registration was not active at the time of proposal submission.

Discussion

On this record, we find the agency’s conclusion that Maxim was ineligible for award and its arguments that this conclusion was consistent with the solicitation to be unreasonable. The record shows that the FOPR did not include FAR provision 52.2047. See generally FOPR. In addition, while the solicitation for the IDIQ contract incorporated FAR provision 52.204-7, Maxim’s IDIQ contract incorporates only FAR clause 52.204-13 and not FAR provision 52.204-7. AR, Tab 19, IDIQ Solicitation Section L at 1; Tab 1, Maxim IDIQ Contract at 42. Neither the FOPR nor Maxim’s IDIQ contract include FAR provision 52.204-7. As a result, this provision cannot provide a justification to exclude Maxim’ s task order proposal from consideration as the requirement to have an active SAM registration at the time of proposal submission was not incorporated into the FOPR solicitation. To the extent the agency argues that our Office should read FAR provision 52.204-7 into the FOPR as prescribed by FAR section 4.1105(a)(1), or because it was included in the IDIQ solicitation, the agency does not cite any legal authority for its position. There is no requirement that mandatory provisions must be incorporated into solicitations by operation of law when they have been omitted …

Decision

Maxim Healthcare Staffing Services, Inc., of Columbia, Maryland, protests the issuance of a task order to InGenesis, Inc., of San Antonio, Texas, under fair opportunity proposal request (FOPR) No. 70CDCR24R00000003, issued by the Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), for on-site medical staffing services for ICE residents and detainees at the following facilities located in Texas: El Paso, Houston, Montgomery, Port Isabel, and Taylor. The protester contends that the exclusion of its proposal from consideration for the task order due to a temporary lapse in its System for Award Management (SAM) registration is unreasonable and contrary to the terms of the solicitation.

We sustain the protest.

Remedy Recommendation

We recommend that the agency terminate for the convenience of the government the task order issued to InGenesis, Inc., reopen the competition and include Maxim’s proposal in its best-value tradeoff, and make a new selection decision. We also recommend that the agency reimburse the protester its costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1). The protester’s certified claim for costs, detailing the time expended and costs incurred, must be submitted to the agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f).

Read the decision here.

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