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GAO Dismisses Protest Alleging Noncompliance with E-Verify Requirements




by:
Townsend L. Bourne
Sheppard, Mullin, Richter & Hampton LLP - Washington Office

 
November 27, 2013

Previously published on November 20, 2013

In Ashland Sales & Service Co., B-408969 (Nov. 1, 2013), the Government Accountability Office (“GAO”) dismissed a protest by Ashland Sales & Service Co. (“Ashland”) alleging that a contract for lightweight jackets was improperly awarded to Creighton AB, Inc. (“Creighton”) where Creighton was not enrolled in the employment eligibility verification (“E-Verify”) system at the time of award. The decision explains that E-Verify is a government web-based system that allows employers to verify the eligibility of new employees to work in the United States.

The solicitation at issue included the clause at FAR 52.222-54, Employment Eligibility Verification, which provides that a contractor not enrolled in E-Verify at contract award “shall [enroll] within 30 calendar days of contract award.” According to the decision, Creighton was not enrolled in E-Verify at the time of award, but it enrolled the day after award. The GAO found the requirement in the FAR clause allowing enrollment 30 days following award to be a matter of contract administration “having no effect upon the validity of an award.” Thus, the protest involved an issue outside of the GAO’s bid protest jurisdiction, under which it considers “challenges to the award or proposed award of contracts.” See 4 C.F.R. § 21.5.

Interestingly, the GAO also waived off the awardee’s previous noncompliance with the requirement in the FAR clause related to E-Verify. In its protest, Ashland brought to light the fact that the same contracting activity involved in the protest had awarded contracts to Creighton and allowed Creighton to perform without enrolling in E-Verify as required by the FAR clause, which also was included in the earlier contracts. This prior noncompliance, alleged the protester, rendered Creighton’s proposal technically unacceptable and ineligible for award. The GAO stated that it did not condone Creighton’s prior failure to enroll in E-Verify, but this did not alter its view that Creighton’s proposal was acceptable or that compliance with the E-Verify requirement was a matter of contract administration that it would not review.



 

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