[Request for Reconsideration of Dismissal of Protest Against DLA Bid Rejection]
Highlights
A firm requested reconsideration of a decision dismissing its protest against the rejection of its bid as nonresponsive under a Defense Logistics Agency (DLA) small business set-aside procurement. The protester had indicated in its bid that: (1) it was a small business; (2) that it had Walsh-Healey certification that it was a manufacturer of the supplies needed for the contract; and (3) that a small business would not be manufacturing or producing all of the supplies. DLA rejected the bid as nonresponsive because the protester had not clearly obligated itself to furnish small business produced products. The protester argued that the certification and the listing of its plant as the place of performance created a binding obligation to furnish small business-manufactured supplies. GAO dismissed the protest because certifying that a small business would not manufacture the required products represented a failure to make a mandatory commitment and rendered the bid ambiguous nonresponsive. In its request for reconsideration, the protester contended that: (1) listing its own facility in the place of performance clause created a binding obligation to supply small business products since the solicitation prohibited work performance elsewhere unless approved; and (2) since its intent was clear, its certification that the supplies would not be small business products was a correctable error. GAO held that a nonresponsive bid cannot be made responsive after bid opening and since the Walsh-Healey manufacturer designation does not prohibit subcontracting the manufacturer of the supplies to a large business, it does not ensure small business products and is not equivalent to that certification. Finally, GAO found that the protester did not show that the decision was erroneous in fact or law. Accordingly, the previous decision was affirmed.