What’s in a Name?
Published Date: June 11, 2018
Quite a lot if you’re submitting a bid protest to the Government Accountability Office (“GAO”).
Government contractors often use names other than their official legal name or fail to make distinctions between the various affiliated companies that make up a group or family of companies in their dealings with the Federal Government. Doing so, however, can lead to problems for the contractor if the contractor does not accurately identify who is the actual contracting party. Recently, it led to GAO dismissing a protest challenging the award of a $1.4 billion contract in Intermarkets Global USA, LLC, B-415969.2, B-415969.4, 2018 WL 2296533 (March 9, 2018).
Intermarkets Global USA, LLC (“IMG US”) filed a protest challenging the award of a contract for food distribution in the Middle East to KGL Food Services WLL. GAO dismissed the protest without considering the merits of the protest, concluding that IMG US was not an interested party to challenge the award. GAO reached this conclusion because IMG US had not actually submitted a proposal to Government on this procurement. Rather, the proposal was submitted by a joint venture consisting of Intermarkets Alliance – an IMG US affiliate – and USFI, Inc.
According to IMG US, Intermarkets Alliance includes a number of sister and subsidiary companies. IMG US argued that Intermarkets Alliance submitted the proposal on behalf of all of the IMG companies and that the offeror submitting the proposal – the IMG companies – remained the same. This, IMG US argued, gave it standing to challenge the award.
GAO disagreed. It concluded that Intermarkets Alliance would have been the entity that held the contract if the contract had been awarded to Intermarkets Alliance. Thus, only Intermarkets Alliance had standing to challenge the award to another offeror. The fact that Intermarket Alliance’s proposal indicated that the employees and resources of other IMG companies would be used and that Intermarkets Alliance and IMG US had common ownership did not change this. As a result, GAO dismissed the protest.
This case is a good reminder of the need to ensure that government contractors to ensure that they use the correct legal entity when dealing with the Federal Government.