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[ Market Watch ]
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ORCA takes a whale of effort
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by Andrew Mohr, C, Kelly Kroll
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Despite the killer whale icon proudly on display at the ORCA government Web site, ORCA actually stands for "Online Representations and Certifications Application," not the dorsal-finned star of Free Willy. ORCA is an Internet database application that was designed to replace the paper-based version of the Representations and Certifications found in Section K of almost every federal solicitation for the procurement of goods and/or services.
Before ORCA, offerors were required to complete certifications and representations in each and every bid, proposal, or quote. In the interest of trees, vendors are now required by FAR 4.1201(a) to fill out ORCA as a starting point and then, if necessary, tailor the Representations and Certifications section of each solicitation as it pertains to that specific solicitation.
Formal certification of ORCA data occurs when a vendor signs a solicitation. At that time a vendor is certifying that data in ORCA is current, accurate, and complete. While it sounds easy enough, contractors must also keep ORCA up to date by annually re-certifying that its ORCA online filing remains current, accurate, and complete. Forget to re-certify annually and your Reps and Certs are dead (fish) in the water, or as we call it, ORCA bait.
Not So Simple
What's more difficult to understand is how ORCA meshes with the Representations and Certifications requested in an individual solicitation to which you are responding. For example, a contractor must make sure that the representation of its size status in ORCA, which in turn relates to the vendor's Central Contractor Registration, is correct as it pertains to the particular size standard of the specific solicitation at issue. That is, while ORCA allows a vendor to represent as to its size status, ORCA only does so for those NAICS codes listed in the vendor's CCR profile and not necessarily for the NAICS code that pertain to the specific solicitation to which the vendor is responding.
ORCA also gives contractors the option to forego certain online certifications and supply specific information to the contracting agency for a particular procurement as applicable. A possible problem, however, is that not all solicitations make clear whether a Representation or Certification found in ORCA also applies to that solicitation.
In response, many contractors simply complete all the ORCA Representations and Certifications, even though they have no application to the solicitation at hand. To complicate matters further, some clauses found in ORCA incorporate other FAR clauses by reference that may or may not be included in the subject solicitation.
So, unless a vendor is sure to read every line of each FAR clause referenced on ORCA and then review those clauses incorporated by reference, and then closely compare those Representations and Certifications with the clauses contained and incorporated by reference in the subject solicitation, the vendor might be certifying incorrectly -- or failing to certify at all.
Another foreseeable problem could arise if a contractor completes ORCA with one procurement in mind and then neglects to change ORCA for a subsequent procurement that may require different answers based on the goods or services being provided. In short, ORCA has turned a simple certification process into a convoluted process necessitating more due diligence.
Certification Issues
In a least one published case to date the Government Accountability Office sustained a protest where the successful offeror had in fact failed to certify through ORCA that its products complied with the Trade Agreements Act. Wyse Technology, Inc., B-297454, Jan. 24, 2006, 2006 CPD ¶ 23. Wyse protested an agency award to CDW alleging that CDW's computers were made either in Taiwan or China in violation of the TAA. CDW had declined to certify through ORCA online, but also failed to submit a paper certification for this particular procurement attesting to its provision of items compliant with the TAA. The GAO found that as an end result CDW had failed to submit any certification at all and sustained Wyse's protest.
Except for commercial item acquisitions under FAR Part 12, agencies are supposed to include FAR 52.204-8, Annual Representations and Certifications (January 2006), whenever the agency intends to rely on the ORCA filing. This clause allows an agency to employ ORCA as its Representations and Certifications, and also permits a contractor to take exception to or amend any of the clauses comprising its ORCA filing.
Any exceptions or amendments taken apply only to the particular procurement and don't change the ORCA filing. For commercial item acquisitions, agencies are supposed to use FAR Clause 52.212-3, which reiterates most of the clauses in ORCA (thus failing to save trees) but then gives you the option to leave them all blank and instead certify that ORCA has been completed.
Confusing enough for you? We've included a chart to simplify ORCA compliance, so we don't spout too much.
Andrew Mohr is a partner in the law firm of Cohen Mohr LLP and a Professorial Lecturer at American University in Washington, DC, who specializes in government and commercial contracts, including GSA schedules. C. Kelly Kroll is an associate at Cohen Mohr with extensive experience in GSA Schedule contract proposal preparation, negotiation, and administration. Contact them at (202) 342-2550, fax (202) 342-6147, or at www.cohenmohr.com.
MORE INFO
ORCA orca.bpn.gov
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