#GovConThoughts: Continuity of SAM Registration Under FAR 52.204-7
The Court of Federal Claims ("COFC") bid protest decision (granting a motion for preliminary injunction) in Myriddian v. United States is a cautionary reminder for contractors and SAM registration under FAR 52.204-7. While my partner David Yang and I recently wrote about SAM registration in the context of joint ventures and bid submission, this COFC decision provides a twist because it focuses on the continuity of registration requirement under the regulation.
By now, most of the #govcon community is aware (or should be aware) that FAR 52.204-7(b)(1) says that contractors must be registered in SAM prior to submitting a bid to be eligible for award. That was not the issue in this protest, as the awardee was registered in SAM at the time of proposal submission and at the time of award. The twist, however, is that the regulation also states that contractors "shall continue to be registered until time of award."
Here, the protester argued that the awardee was ineligible for award because it violated the continuity requirement under FAR 52.204-7(b)(1), despite the awardee's efforts in trying to renew its registration prior to the lapse. That is, that the awardee's SAM registration lapsed for 17 days in between bid submission and award. The government, on the other hand, argued that the "lapse was not fatal because [the awardee] was registered when it submitted its bid and when the Agency issued the award, so the error was correctable" and, alternatively, that it could waive the requirement. COFC did not bite.
In granting the protester's motion, COFC first concluded that SAM registration is mandatory under FAR 52.204-7(b)(1). The COFC then determined that there is no exception under the FAR for the SAM registration's continuity requirement and also concluded that the Agency lacked discretion to waive the continuity requirement. In other words, even though the awardee was registered in SAM before bid submission and at the time of award, the COFC ruled in favor of the protester because the awardee violated the plain language – "shall continue to be registered until time of award" – under FAR 52.204-7(b)(1).
Notably, because the decision was on a motion for preliminary injunction, COFC required the protester, under RCFC 65(c), to post security of $405,000.
This decision, though perhaps an unfair outcome, provides a warning to contractors: do not let your SAM registrations lapse, particularly where proposals are pending. Notably, following this decision, the government filed a motion for remand, so COFC may not render a decision on the merits. In any event, while this decision is not binding on other COFC judges or on GAO, contractors should still take note and pay close attention to, and timely update, your SAM registrations. This process should take place well in advance of your renewal date given delays in SAM processing (the awardee tried to renew its registration on 2/2/23, which was before it lapsed on 2/11/23; however, the renewal didn’t go through until 3/1/23).