B-165847, FEB. 24, 1969
Highlights
THERE IS ENCLOSED A COPY OF OUR DECISION OF THIS DATE. WE WISH TO BRING TO YOUR ATTENTION FOR CLARIFICATION CERTAIN PROVISIONS OF THE INVITATION WHICH HAVE CREATED SOME CONFUSION ON THE PART OF BIDDERS RESPECTING THE NATURE OF A SMALL BUSINESS SELF CERTIFICATION. BIDDERS ARE REQUESTED TO LIST THE NAME. LOCATION AND BUSINESS SIZE OF THE PLANT AT WHICH THE WORK IS TO BE PERFORMED. BIDDERS ARE CONSTRUING THESE TWO PROVISIONS IN CONJUNCTION WITH THE PROMISE MADE UNDER THE SMALL BUSINESS CERTIFICATION. THE NET RESULT APPEARS TO BE THAT A BIDDER MIGHT PROMISE TO HAVE THE PRODUCT MANUFACTURED OR SUPPLIED BY A SMALL BUSINESS ONLY SO LONG AS THE PLANT LISTED BY HIM ON PAGE 15 OF THE INVITATION IS DETERMINED SMALL AND FURTHER THAT UNDER THE PROVISION ON PAGE 17 THE BIDDER MAY.
B-165847, FEB. 24, 1969
TO GENERAL HEDLUND:
WITH REFERENCE TO A LETTER OF JANUARY 24, 1969, DSAH-G, CONCERNING THE PROTEST BY HARVEY DAIRY, INCORPORATED, AGAINST AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. DSA-138-69-B-0034, THERE IS ENCLOSED A COPY OF OUR DECISION OF THIS DATE.
WE WISH TO BRING TO YOUR ATTENTION FOR CLARIFICATION CERTAIN PROVISIONS OF THE INVITATION WHICH HAVE CREATED SOME CONFUSION ON THE PART OF BIDDERS RESPECTING THE NATURE OF A SMALL BUSINESS SELF CERTIFICATION.
ON PAGE 15, SECTION "H" EVALUATION AND AWARD FACTORS, OF THE INVITATION, BIDDERS ARE REQUESTED TO LIST THE NAME, LOCATION AND BUSINESS SIZE OF THE PLANT AT WHICH THE WORK IS TO BE PERFORMED. PAGE 17 OF THE SAME SECTION ADVISES THAT THE ABOVE INFORMATION MAY BE FURNISHED OR CHANGED AFTER BID OPENING BUT PRIOR TO AWARD. APPARENTLY, BIDDERS ARE CONSTRUING THESE TWO PROVISIONS IN CONJUNCTION WITH THE PROMISE MADE UNDER THE SMALL BUSINESS CERTIFICATION. SEE PAGE 2, STANDARD FORM 33. THE NET RESULT APPEARS TO BE THAT A BIDDER MIGHT PROMISE TO HAVE THE PRODUCT MANUFACTURED OR SUPPLIED BY A SMALL BUSINESS ONLY SO LONG AS THE PLANT LISTED BY HIM ON PAGE 15 OF THE INVITATION IS DETERMINED SMALL AND FURTHER THAT UNDER THE PROVISION ON PAGE 17 THE BIDDER MAY, AFTER BID OPENING, PRIOR TO AWARD, AT HIS OPTION SUPPLY OR CHANGE THE IDENTITY OF THE MANUFACTURING PLANT.
IN VIEW OF THIS POSSIBILITY, WE RECOMMEND THAT A CLAUSE BE INCLUDED IN FUTURE INVITATIONS IN CLOSE PROXIMITY TO THE REPRESENTATIONS MADE ON PAGE 15, ADVISING THAT ELIGIBILITY FOR A SMALL BUSINESS SET-ASIDE AWARD IS DEPENDENT UPON PROMISING PRIOR TO BID OPENING THAT THE PRODUCT WILL BE MANUFACTURED BY SMALL BUSINESS AND THAT ANY REPRESENTATION AS TO MANUFACTURING PLANT, LOCATION, OR ANY CHANGE MADE THEREIN, MUST BE IN CONFORMANCE WITH THAT PROMISE WHICH TAKES PRECEDENCE OVER ANY REPRESENTATION AS TO PARTICULAR PLANTS PROPOSED TO BE USED. IN SHORT, WHILE A BIDDER MAY CHANGE MANUFACTURERS, HIS PROMISE TO HAVE THE PRODUCT MANUFACTURED BY A SMALL BUSINESS SHOULD REMAIN FIRM AND NOT BE CHANGED AFTER BID OPENING.