Ms. Donna Raney
Sr. Assistant County Attorney
Palm Beach County
P.O. Box 1989
West Palm Beach, Florida 33402-1989
Dear Ms. Raney:
Thank you for your letter requesting clarification of the Buy America certification requirements as they apply to negotiated procurements.
You specifically ask whether Palm Beach County (“County”) may reject an initial offer as being not responsive to a Request for Proposals (RFP) without performing a technical evaluation, if the offer does not include a Buy America certificate. We do not think so.
With negotiated procurements under an RFP, Federal procurement law does not use the concept of “responsiveness,” which is used only in bidding situations. Rather, the concept of “technical acceptability” is used. A proposal may be rejected as technically unacceptable if it is determined that it will not satisfy the owner’s requirements without major revision, in effect, substituting a different proposal. So, if the County reserves the right to select on initial proposals, and chooses to do so, the County must reject a proposal that does not include a Buy America certificate as “technically unacceptable” as there is no opportunity to change the proposal to comply with the Buy America certification requirement. However, if the County enters into discussions requiring submission of final offers, any offeror could change its original proposal to include a Buy America certification, or change the original certification.
Federal practice does allow a proposal to be found “technically unacceptable” for failure to provide specified certifications that go to the technical requirements of the solicitation. See e.g., Matter of Cybernet Systems Corporation, 2003 WL 22242370 (Comp. Gen) (“Cybernet”). A proposal deemed technically unacceptable would be excluded from the pool of offerors determined to be in the “competitive range.” It seems, however, that the determination of technical acceptability is part of the technical evaluation. Thus, we conclude that the County cannot reject an initial offer without performing at least some form of technical evaluation. Moreover, we do not believe that the Buy America certification is the type of certification covered in Cybernet. A Buy America certification does not directly affect the technical aspects of an offer, and except in the case of award on initial proposals, the County’s practice gives an unfair advantage to offerors who, having submitted a Buy America certification with the original proposal, are allowed to change the certification in a final offer.
We appreciate that our position is not the only reasonable interpretation. However, in absence of Federal case law directly on point, we believe our position provides the fairest opportunity to all offerors in the situation described.
I hope this explanation is helpful. If you have any questions, please contact Meghan G. Ludtke, at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc:Paul Jensen, Regional Counsel