Certification Not Required Prior to Award
In the protest of Bode Aviation, Inc., B-411265 (June 26, 2015), the protestor argued that the solicitation required that all bidders "have certification for the contract aircraft at the time of the bid proposal.” The GAO disagreed.
The GAO began with the general rule that, unless the solicitation requires bidders to provide proof of qualifications or certifications prior to award, "such requirements constitute performance provisions rather than preconditions for award." In this case, the solicitation contained the following provision regarding certification:
Contractors shall hold a current Federal Aviation Administration (FAA) Air Carrier or Operating Certificate. Aircraft offered shall be listed by make, model, series, and registration number on the Operator’s 14 CFR [Code of Federal Regulations] 135 Operating Certificate.
The GAO found that the above clause did not mean the bidder had to have a certificate at the time it submitted its proposal, only that the bidder would need to be certified at the time of contract performance. The GAO therefore denied the protest because it does not have jurisdiction over post-award performance issues.
This case demonstrates that the solicitation must clearly state that a certification requirement must exist at the time of proposal submission; otherwise, it will be construed as a requirement that can be subsequently satisfied after contract award.
If you are facing an issue over certification, the answer depends on the particular language in your solicitation. Read it carefully.
