B-239678, Sep 12, 1990, 90-2 CPD 201
Highlights
PROCUREMENT - Socio-Economic Policies - Small businesses - Disadvantaged business set-asides - Eligibility - Determination DIGEST: Small disadvantaged business (SDB) is not entitled to preference where solicitation expressly deletes clause providing for SDB preference. Nine bids were received by the closing date of April 9. On May 3 award was made to the lowest responsible bidder. The protester who was the forth-low bidder asserts that had the agency given preference to SDB's. It would have been the lowest responsive. Joa Quin bases its claim on the inclusion of the following provision in the representations and certifications of the IFB: "K-23 NOTICE OF EVALUATION PREFERENCE FOR SMALL DISADVANTAGED BUSINESS (SDB) CONCERNS "The following information is required to comply with Contract Clause DFARS 252.219-7007 if applicable (See Section I). "/ / By checking this block the SDB Offeror requests that this evaluation preference as described in contract clause 252.219-7007 not be given to this offer.".
B-239678, Sep 12, 1990, 90-2 CPD 201
PROCUREMENT - Socio-Economic Policies - Small businesses - Disadvantaged business set-asides - Eligibility - Determination DIGEST: Small disadvantaged business (SDB) is not entitled to preference where solicitation expressly deletes clause providing for SDB preference.
Attorneys
Joa Quin Mfg. Corp.:
Joa Quin Mfg. Corp. protests the award to Safety Storage, Inc., under invitation for bids (IFB) No. DAHA20-90-B-0002, issued as a total small business set-aside by the National Guard Bureau, Departments of the Army and the Air Force, Lansing, Michigan, for two hazardous waste containers. Joa Quin contends that the National Guard erred by failing to give an evaluation preference to small disadvantaged business (SDB) concerns.
We deny the protest.
Nine bids were received by the closing date of April 9, 1990, and on May 3 award was made to the lowest responsible bidder, Safety Storage, Inc. The protester who was the forth-low bidder asserts that had the agency given preference to SDB's, it would have been the lowest responsive, responsible bidder. Joa Quin bases its claim on the inclusion of the following provision in the representations and certifications of the IFB:
"K-23 NOTICE OF EVALUATION PREFERENCE FOR SMALL DISADVANTAGED BUSINESS (SDB) CONCERNS
"The following information is required to comply with Contract Clause DFARS 252.219-7007 if applicable (See Section I).
"/ / By checking this block the SDB Offeror requests that this evaluation preference as described in contract clause 252.219-7007 not be given to this offer."
The clause at Defense Federal Acquisition Regulations Supplement (DFARS) 252.219.7007 (DAC 88-14), which provides for an SDB preference, was included in the IFB package but was then expressly deleted by Sec. I-75 of the IFB. Since, by its own terms, the SDB representation is only applicable if DFARS Sec. 252.219-7007 is included in the contract, the only reasonable interpretation of the IFB is that the SDB preference is not applicable. /1/ Thus, the protester had no entitlement to such a preference. See W.M. Marable, Inc., B-234987 et al., May 3, 1989, 89-1 CPD Para. 425.
The protest is denied.
/1/ DFARS Sec. 219.7001(a) (DAC 88-14) provides that no SDB preference will be applied in the event of a total small business set aside, as is the case here.