B-153132, FEB. 4, 1964

B-153132: Feb 4, 1964

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THE ABOVE INVITATION WAS ISSUED BY HEADQUARTERS. ESTIMATED QUANTITIES WERE SET FORTH ON PAGES 8 THROUGH 10 OF THE INVITATION. WERE LINED OUT. THOSE PROVIDING THAT THE BIDDER WAS TO CHECK CERTAIN BOXES RELATING IN PERTINENT PART TO BIDDER'S REPRESENTATIONS (1) THAT BIDDER IS OR IS NOT A SMALL BUSINESS CONCERN. THAT SUPPLIES WILL OR WILL NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN IN THE UNITED STATES. (2) THAT BIDDER IS A REGULAR DEALER. FORM 83R AS REVISED BY 83-A-R THROUGH 83-E-R REQUESTED REPRESENTATIONS AS TO THE BIDDER'S SIZE STATUS (WHETHER BIDDER'S CONCERN IS SMALL BUSINESS AND IF SMALL BUSINESS WHETHER BIDDER IS A MANUFACTURING OR NONMANUFACTURING CONCERN. IF A SMALL BUSINESS NONMANUFACTURING CONCERN THE NAME AND LOCATION OF THE PLANT WERE TO BE LISTED.).

B-153132, FEB. 4, 1964

TO TIP TOP DAIRIES COMPANY:

WE REFER TO YOUR TELEGRAM DATED DECEMBER 23, 1963, PROTESTING THE AWARD OF CONTRACT NO. 33-995 TO INTER-MOUNTAIN DAIRYMEN, INCORPORATED, PURSUANT TO INVITATION FOR BIDS NO. DSA 33-5-64.

THE ABOVE INVITATION WAS ISSUED BY HEADQUARTERS, KANSAS CITY REGION, DEFENSE SUBSISTENCE SUPPLY CENTER, 623 HARDESTY AVENUE, KANSAS CITY, MISSOURI, 64124, ON OCTOBER 14, 1963. THE INVITATION PROVIDED THAT THE CONTRACTOR WOULD FURNISH REQUIREMENTS OF VARIOUS DAIRY PRODUCTS, SPECIFIED ON PAGES 2 THROUGH 6 OF THE INVITATION'S SCHEDULE, TO FORT CARSON, ENT AIR FORCE BASE AND THE UNITED STATES AIR FORCE ACADEMY, COLORADO, FOR THE PERIOD DECEMBER 25, 1963, THROUGH DECEMBER 24, 1964. ESTIMATED QUANTITIES WERE SET FORTH ON PAGES 8 THROUGH 10 OF THE INVITATION. PAGE 1 OF THE SCHEDULE PROVIDED FOR A 100 PERCENT SET ASIDE FOR SMALL BUSINESS CONCERNS.

CERTAIN PROVISIONS ON THE INITIAL PAGE OF THE INVITATION, STANDARD FORM 30, WERE LINED OUT, NAMELY, THOSE PROVIDING THAT THE BIDDER WAS TO CHECK CERTAIN BOXES RELATING IN PERTINENT PART TO BIDDER'S REPRESENTATIONS (1) THAT BIDDER IS OR IS NOT A SMALL BUSINESS CONCERN; THAT SUPPLIES WILL OR WILL NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN IN THE UNITED STATES, ITS TERRITORIES, ITS POSSESSIONS, OR THE COMMONWEALTH OF PUERTO RICO, AND (2) THAT BIDDER IS A REGULAR DEALER, OR MANUFACTURER OF THE SUPPLIES BID UPON, AND THE INVITATION PROVIDED THAT SUCH INFORMATION SHOULD BE ENTERED ON "ATTACHED FORM DSSC 83R.' FORM 83R AS REVISED BY 83-A-R THROUGH 83-E-R REQUESTED REPRESENTATIONS AS TO THE BIDDER'S SIZE STATUS (WHETHER BIDDER'S CONCERN IS SMALL BUSINESS AND IF SMALL BUSINESS WHETHER BIDDER IS A MANUFACTURING OR NONMANUFACTURING CONCERN, AND IF A SMALL BUSINESS NONMANUFACTURING CONCERN THE NAME AND LOCATION OF THE PLANT WERE TO BE LISTED.) PAGE 15 OF THE SCHEDULE REQUESTED BIDDER'S REPRESENTATIONS REGARDING THE PLACE OF MANUFACTURE OF THE ITEMS SPECIFIED; THE LOCATION OF THE PLACE OF MANUFACTURE; THE BUSINESS SIZE STATUS OF THE PLACE OF MANUFACTURE AND INFORMATION AS TO THE MINIMUM ITEMS ACCEPTABLE.

BIDS WERE OPENED ON NOVEMBER 20, 1963. SEVEN BIDS WERE SUBMITTED AND YOUR BID, CONTAINING AN ,ALL OR NONE" QUALIFICATION, WAS LOW BY SOME $14,874. THE SECOND LOW BIDDER, INTER-MOUNTAIN DAIRYMEN,INCORPORATED, 129 SOUTH CORONA, COLORADO SPRINGS, COLORADO, QUOTED A PRICE $1,145,948.80 DISCOUNTED AT 1/2 PERCENT, 20 DAYS, FOR THE ESTIMATED OVER-ALL TOTAL FOR ITEMS 1 THROUGH 28 AND WAS ALSO AN "ALL OR NONE" BID. YOU DID NOT RETURN A COMPLETED FORM 83R AS REVISED WITH YOUR BID AND YOU DID NOT COMPLETE PAGE 15 OF THE INVITATION BEFORE BID OPENING EXCEPT FOR INSERTING THE "ALL OR NONE" QUALIFICATION. INTER-MOUNTAIN SELF-CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN AND INDICATED THAT THE NAME AND LOCATION OF THE PLANT TO BE UTILIZED IN MANUFACTURING ITEMS 1 THROUGH 28 WOULD BE THE SINTON DAIRY COMPANY, 3801 N. SINTON ROAD, COLORADO SPRINGS, COLORADO. INTER MOUNTAIN ALSO REPRESENTED THAT SINTON WAS A SMALL BUSINESS CONCERN.

IT WAS ADMINISTRATIVELY DETERMINED THAT INFORMATION NECESSARY FOR A FULL AND COMPLETE EVALUATION OF YOUR BID WAS OMITTED AND YOUR BID WAS REJECTED. ON DECEMBER 13, 1963, HEADQUARTERS, KANSAS CITY REGION, DEFENSE SUBSISTENCE SUPPLY CENTER, 623 HARDESTY AVENUE, KANSAS CITY, MISSOURI, AWARDED CONTRACT NO. 33-995 TO INTER-MOUNTAIN DAIRYMEN, INCORPORATED. SUBSEQUENT TO THE AWARD YOU PROTESTED THE REJECTION OF YOUR BID TO THE PROCURING AGENCY AND BY TELEGRAM OF DECEMBER 23, 1963, YOU PROTESTED TO OUR OFFICE, ALLEGING THAT AFFILIATES OF INTER-MOUNTAIN MAY HAVE MADE INTER -MOUNTAIN A LARGE BUSINESS CONCERN.

THE FIRST QUESTION PRESENTED IS WHETHER YOUR BID WAS PROPERLY REJECTED. IN B-152294, AUGUST 27, 1963, WE CONSIDERED A SITUATION SIMILAR TO THE ONE PRESENTED HERE. THERE THE INVITATION PROVIDED FOR A 100 PERCENT SET-ASIDE FOR SMALL BUSINESS AND REQUIRED BIDDERS TO CHECK AN APPROPRIATE BOX REPRESENTING THAT THE SUPPLIES TO BE FURNISHED WOULD BE MANUFACTURED BY SMALL BUSINESS IN THE UNITED STATES OR ITS TERRITORIES AND POSSESSIONS. THE LOW BIDDER DID NOT CHECK THIS BOX AND DID NOT FURNISH INFORMATION REGARDING THE LOCATION OF THE PLACE WHERE THE FINISHED ARTICLES WOULD BE MANUFACTURED IN THE SPACE IN THE INVITATION LEFT BLANK FOR THAT PURPOSE, INSTEAD THE BIDDER INSERTED "WILL ADVISE" IN THAT SPACE. WE STATED THAT SINCE THE PROCUREMENT WAS A TOTAL SMALL BUSINESS SET-ASIDE, BIDDERS WERE ON NOTICE THAT THE CHARACTER OF THE ULTIMATE SUPPLIER WAS OF THE ESSENCE OF THE INVITATION. WE STATED FURTHER THAT TO ALLOW A BIDDER, EVEN THOUGH IT BE A DOMESTIC SMALL BUSINESS, TO POSTPONE DISCLOSURE OF ITS SOURCE OF SUPPLY UNTIL AFTER BIDS WERE PUBLICLY OPENED AND PRICES DISCLOSED WOULD BE UNFAIR TO OTHER BIDDERS WHO SUBMITTED BIDS UPON THE BASIS OF NAMED SOURCES OF MANUFACTURE. IN THE PRESENT SITUATION, YOUR BID DID NOT CONTAIN THE NECESSARY REPRESENTATIONS PERTAINING TO YOUR BUSINESS STATUS OR THE BUSINESS STATUS OF YOUR ULTIMATE SUPPLIER AND YOUR BID DID NOT REVEAL YOUR SOURCE OF SUPPLY. CONSEQUENTLY, WE FIND THE PROCURING ACTIVITY PROPERLY DETERMINED THAT YOU OMITTED INFORMATION NECESSARY FOR A FULL AND COMPLETE EVALUATION OF YOUR BID, AND IN THESE CIRCUMSTANCES YOUR BID WAS PROPERLY REJECTED.

YOU ALSO ALLEGE THAT INTER-MOUNTAIN MAY BE A LARGE BUSINESS CONCERN. ASPR 1-703 PROVIDES THAT THE CONTRACTING OFFICER SHALL ACCEPT THE SELF- CERTIFICATION BY A BIDDER AS TO THE SIZE OF HIS FIRM UNLESS THAT CONTRACTING OFFICER DESIRES TO SUBMIT THE MATTER TO THE SMALL BUSINESS ADMINISTRATION OR SOME OTHER BIDDER HAS, PRIOR TO AWARD, SUBMITTED TO THE CONTRACTING OFFICER A WRITTEN PROTEST. SEE ALSO B 147973, APRIL 9, 1962. THE INFORMATION RECEIVED FROM THE CONTRACTING AGENCY SHOWS THAT YOU DID NOT QUESTION THE SIZE STATUS OF INTER MOUNTAIN UNTIL AFTER AWARD AND THE CONTRACTING OFFICER INFORMS US NO PROTESTS WERE RECEIVED PRIOR TO AWARD RELATING TO INTER-MOUNTAIN'S SIZE STATUS. IN SUCH CIRCUMSTANCES, ASPR 1- 703 (B) (1) PROVIDES THAT A PROTEST AS TO THE SIZE OF ANOTHER BIDDER SHALL NOT BE CONSIDERED. IN OUR VIEW SUCH A RULE IS EMINENTLY REASONABLE AND NECESSARY AS A PRACTICAL MATTER TO THE PROPER ADMINISTRATION OF GOVERNMENT CONTRACTS SINCE A BIDDER IN SUCH CIRCUMSTANCES OTHERWISE COULD NEVER BE SURE THAT AN AWARD TO HIM WOULD BE SUSTAINED. WE RECOGNIZE THAT YOU MIGHT HAVE PROTESTED INTER-MOUNTAIN'S SELF-CERTIFICATION IN THE TIME AND MANNER PROVIDED BY REGULATION BUT FOR YOUR UNDERSTANDING, BASED ON REMARKS OF THE CONTRACTING OFFICER, THAT YOUR FIRM WOULD RECEIVE THE AWARD. HOWEVER, WE DO NOT FEEL THAT THE UNFORTUNATE FACTUAL SITUATION IN WHICH YOU WERE PLACED NEGATES THE REASON FOR OR JUSTIFIES AN EXCEPTION TO THE RULE, AT LEAST IN THE ABSENCE OF A PRIMA FACIE SHOWING THAT THE CONTRACTOR DID NOT QUALIFY AS A SMALL BUSINESS AT THE TIME OF AWARD.