Background
OS-DB-JV-2 LLC challenged the Department of Veterans Affairs’ decision to remove it from a service-disabled veteran-owned small-business set-aside procurement for janitorial services. After discussions, Amendment 004 required the two remaining offerors to resubmit all proposal volumes and specifically instructed joint-venture offerors to include the certification required by 13 C.F.R. § 128.402(e).
OS-DB timely submitted its final proposal revision, and its transmittal email identified the certification as an attachment. The executed document was not actually attached, however, because of what OS-DB described as an inadvertent electronic error. The VA excluded OS-DB, and the Government Accountability Office denied its protest. OS-DB then sued in the Court of Federal Claims and sought a preliminary injunction preventing an award while the case proceeded.
The Court’s Holding
The court denied preliminary injunctive relief because OS-DB had shown virtually no likelihood of success on the merits, the most important preliminary-injunction factor. It concluded that the certification was a material solicitation requirement: the solicitation warned that materially nonconforming proposals would be rejected, and Amendment 004 expressly told joint-venture offerors that they “must” include the certification.
The court also held that the VA was not obligated to seek clarification under FAR 15.306(a). Unlike a clerical omission that could be resolved from information already in the procurement file, OS-DB’s missing certification included contract-specific promises concerning future performance and subcontracting limitations. A certification associated with an earlier VA contract could not satisfy those requirements. The court further observed that Amendment 004 followed discussions and already gave OS-DB an opportunity to cure its failure to include the certification in its initial proposal.
The court additionally found that OS-DB had not demonstrated a likelihood of proving prejudice from the VA’s asserted best-value assessment, given the price difference between OS-DB and the other remaining offeror. It did not enter final judgment, instead directing the parties to report whether OS-DB would dismiss the case, request final judgment while preserving an appeal, or proceed to administrative-record briefing.
Key Takeaways
- A joint venture’s failure to submit the certification expressly required by 13 C.F.R. § 128.402(e) and the solicitation was a material omission, not merely a correctable clerical error.
- FAR 15.306(a) did not require the VA to seek clarification because the procurement file lacked the contract-specific certification needed to evaluate OS-DB’s proposal.
- The ruling denied preliminary relief only; the court directed the parties to address whether the protest would continue or proceed to final judgment.
Why It Matters
The order underscores that a transmittal email listing a required document does not substitute for including the document itself. For joint ventures pursuing VOSB or SDVOSB contracts, certifications concerning future performance and subcontracting limits must be submitted for the particular procurement when required.
It also illustrates the narrow role of clarifications in negotiated procurements. An agency need not permit an offeror to add a material, contract-specific certification after the proposal deadline merely because the omission resulted from an attachment mistake.