B-237030, Sep 22, 1989, 89-2 CPD 267
Highlights
PROCUREMENT - Socio-Economic Policies - Small businesses - Preferred products/services - Certification DIGEST: Bid submitted in response to a small business set-aside solicitation which contains certification that not all end items to be furnished under the contract will be products of a small business manufacturer cannot be used to establish bidder's legal commitment to do so. The bid was rejected because Midlantic. Midlantic's position is that it made a simple clerical error in its certification that it should have been allowed to correct under mistake in bid procedures set forth in Federal Acquisition Regulation Sec. 14.406. Techalloy is a small business and all other bidders also identified Techalloy as their supplier.
B-237030, Sep 22, 1989, 89-2 CPD 267
PROCUREMENT - Socio-Economic Policies - Small businesses - Preferred products/services - Certification DIGEST: Bid submitted in response to a small business set-aside solicitation which contains certification that not all end items to be furnished under the contract will be products of a small business manufacturer cannot be used to establish bidder's legal commitment to do so.
Midlantic Steel Co., Inc.:
Midlantic Steel Co., Inc. protests the rejection of its bid by the Defense Logistics Agency under invitation for bids (IFB) No. DLA500-89 B- 0896, a total small business set-aside for quantities of nonelectrical wire. The bid was rejected because Midlantic, in the IFB's Small Business Concern Representation provision, certified that not all end items to be furnished under the contract would be manufactured by a small business concern.
Midlantic's position is that it made a simple clerical error in its certification that it should have been allowed to correct under mistake in bid procedures set forth in Federal Acquisition Regulation Sec. 14.406. Midlantic refers to the IFB's Place of Performance clause, in which it identified Techalloy of Union, Illinois as the manufacturing facility, as evidence that its certification resulted from a clerical error-- according to the protester, Techalloy is a small business and all other bidders also identified Techalloy as their supplier.
There is no legal merit to this protest. A bidder for a supply contract that is set aside for small business must obligate itself to furnish the product of small business. 13 C.F.R. Sec. 121.5(b)(2) (1988); Culligan, Inc., 58 Comp.Gen. 307 (1979), 79-1 CPD Para. 149. A bidder that certifies that it will not furnish the product of a small business does not so obligate itself and renders its bid nonresponsive. Propper Mfg. Co., Inc. et al., B-233321; B-233321.2, Jan. 23, 1989, 89-1 CPD Para. 58; American Amplifier and Television Corp., 53 Comp.Gen. 463 (1974), 74-1 CPD Para. 10. The fact that the bidder identifies a small business in the Place of Performance clause does not change this result-- that clause cannot be used to make a bid responsive to the requirement to furnish the product of a small business, because the information provided therein is viewed as pertaining to bidder responsibility rather than to the bidder's performance obligation. Delta Concepts, Inc., 67 Comp.Gen. 522 (1988), 88-2 CPD Para. 43. That being so, the mistake in bid procedures cannot be used to correct the certification, since it is well-established that the mistake rules cannot be used to make a nonresponsive bid responsive. Aerial Machine & Tool Corp., B-234052, Jan. 13, 1989, 89-1 CPD Para. 41; 40 Comp.Gen. Para. 432 (1961).
The protest is dismissed.