In Ashland Sales & Service Co. (Nov. 2013), the Government Accountability Office (GAO) dismissed a protest by Ashland Sales & Service Co. (Ashland), of Olive Hill, Kentucky, alleging that a contract for the Defense Logistics Agency was improperly awarded to Creighton AB, Inc. (Creighton), of Reidsville, Kentucky, because Creighton was not enrolled in the E-Verify system at the time of award.

The issue involved the FAR clause - 52.222-54, Employment Eligibility Verification, which provides 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 next day. 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.”

Furthermore, the GAO did not find the awardee’s previous noncompliance with the requirement in the FAR clause related to E-Verify, to be disqualifying. In its protest, Ashland stated the same contracting activity involved in the protest had awarded contracts to Creighton and allowed Creighton to perform work without enrolling in E-Verify as required by the FAR clause, which also was included in these earlier contracts. According to Ashland, this prior noncompliance rendered Creighton’s proposal technically unacceptable and ineligible for award. The GAO stated 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.

This decision is just another instance of E-Verify becoming an issue in other areas of the law, besides immigration.