B-165732, JAN. 23, 1969

B-165732, JAN. 23, 1969

TO THE EASTERN SPECIALTY CO.:

REFERENCE IS MADE TO YOUR TELEFAX OF DECEMBER 2, 1968, PROTESTING AWARD OF THE LABOR SURPLUS SET-ASIDE PORTION UNDER INVITATION FOR BIDS (IFB) F42600-69-B-1344 TO ANY BIDDER OTHER THAN YOUR COMPANY.

THE IFB WAS ISSUED ON OCTOBER 2, 1968, BY THE OGDEN AIR MATERIEL AREA AND COVERED AN AGGREGATE OF 53,700 PERSONNEL DISTRESS SIGNAL KITS. HALF OF THE QUANTITY WAS SET ASIDE FOR LABOR SURPLUS AREA CONCERNS.

SIX BIDS WERE RECEIVED ON THE NON-SET-ASIDE PORTION AND DELA ENTERPRISES, INCORPORATED, SUBMITTED THE LOW BID AT $3.37 PER UNIT. YOUR COMPANY WAS THE SECOND LOW BIDDER AT A PRICE OF $3.43 PER UNIT. CONSEQUENTLY, AWARD WAS MADE TO DELA ENTERPRISES UNDER THE NON-SET ASIDE PORTION OF THE INVITATION.

AT THE TIME OF THE BID OPENING, NONE OF THE BIDDERS HAD FURNISHED A CERTIFICATION FROM THE DEPARTMENT OF LABOR AS TO THEIR STATUS AS CERTIFIED ELIGIBLE CONCERNS IN ACCORDANCE WITH THE ,NOTICE OF LABOR SURPLUS AREA SET -ASIDE" PROVISIONS OF THE IFB. ADDITIONALLY, NONE OF THE BIDDERS HAD QUALIFIED THEMSELVES AS CONCERNS LOCATED IN A PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA. IN THIS REGARD, BIDDERS WERE INSTRUCTED BY TWO PROVISIONS OF THE IFB AS FOLLOWS:

"/D) ELIGIBILITY BASED ON CERTIFICATION. WHERE ELIGIBILITY FOR PREFERENCE IS BASED UPON THE STATUS OF THE BIDDER OR BIDDER'S SUBCONTRACTORS AS A -CERTIFIED-ELIGIBLE CONCERN,- THE BIDDER SHALL FURNISH WITH HIS BID EVIDENCE OF CERTIFICATION BY THE SECRETARY OF LABOR.

"B. ATTENTION CONCERNS IN LABOR SURPLUS AREAS:

"/1) * * * IN ADDITION, IF AN OFFEROR IS A -CERTIFIED-ELIGIBLE CONCERN- AS DEFINED IN THE AFOREMENTIONED CLAUSE, HE SHALL FURNISH WITH HIS BID A COPY OF HIS CERTIFICATION OR HIS FIRST TIER SUBCONTRACTORS CERTIFICATION BY THE DEPARTMENT OF LABOR. FAILURE TO PROVIDE THE PROPOSED AREAS OF PERFORMANCE, AND CERTIFICATION, AS APPLICABLE, AND SPECIFIED ABOVE WILL PRECLUDE CONSIDERATION OF SUCH OFFEROR AS A LABOR SURPLUS AREA CONCERN.'

SUBSEQUENTLY, ON NOVEMBER 8, 1968, THE OGDEN AIR MATERIEL AREA RECEIVED A LABOR DEPARTMENT CERTIFICATION CONCERNING THE ELIGIBILITY OF EASTERN SPECIALTY WITH A REQUEST THAT THE SET-ASIDE PORTION BE AWARDED TO IT. HOWEVER, SINCE THE CERTIFICATION OF ELIGIBILITY HAD NOT BEEN RECEIVED AT THE TIME OF BID OPENING, THE PRIORITY OF THE BIDDERS FOR AWARD OF THE SET- ASIDE PORTION HAD TO BE ASCERTAINED UNDER THE PROVISIONS OF THE IFB ON THE BASIS OF THE INFORMATION FURNISHED BY THE BIDDERS. IT WAS DETERMINED THAT TWO OF THE BIDDERS QUALIFIED UNDER THE LOWEST OF THE LABOR SURPLUS AREA PRIORITIES, I.E., SMALL BUSINESS CONCERNS. THOSE TWO BIDDERS WERE DELA ENTERPRISES, INCORPORATED, AND THE EASTERN SPECIALTY CO. BECAUSE DELA ENTERPRISES SUBMITTED THE LOWEST BID UNDER THE NON-SET-ASIDE PORTION, IT IS PROPOSED TO AWARD THE SET-ASIDE PORTION TO THAT BIDDER.

IT IS ABUNDANTLY CLEAR FROM THE INSTRUCTIONS CONTAINED IN THE INVITATION FOR BIDS THAT THOSE BIDDERS WISHING TO BE CONSIDERED UNDER THE HIGHER CERTIFIED ELIGIBLE CATEGORY WERE REQUIRED TO FURNISH LABOR DEPARTMENT CERTIFICATION WITH THEIR BIDS. THIS WAS NOT COMPLIED WITH BY EASTERN SPECIALTY.

AN ANALOGOUS SITUATION WAS CONSIDERED IN 47 COMP. GEN. 543, 546-549, WHERE WE HELD:

"IN LINE WITH THAT VIEW, OUR DECISIONS HAVE STATED THAT INVITATIONS INVOLVING LABOR SURPLUS SET-ASIDES SHOULD STATE THE INFORMATION WHICH BIDDERS ARE TO FURNISH IN THEIR BIDS AND THE EFFECT OF THE FAILURE TO FURNISH IT. 44 COMP. GEN. 34; 41 ID. 160. WE NOTE THAT IN THE PRESENT CASE THE INVITATIONS DID NOT SPECIFICALLY ADVISE PROSPECTIVE BIDDERS OF THE EFFECT OF THEIR FAILURE TO SUBMIT THE CERTIFICATE OF ELIGIBILITY WITH THEIR BIDS; HOWEVER, WE HELD IN B-156374, SEPTEMBER 3, 1965, THAT -WHILE IT MIGHT HAVE BEEN PREFERABLE TO AFFIRMATIVELY ADVISE BIDDERS OF THE CONSEQUENCES OF THEIR FAILURE TO INDICATE SITES OF PERFORMANCE * * * THE ENTIRE CONTEXT OF THE SET-ASIDE NOTICE IS CLEARLY OF MATERIAL SIGNIFICANCE IN BID EVALUATION.- SEE, ALSO, 44 COMP. GEN. 34.

"THE GENERAL RULE IS WELL ESTABLISHED THAT IN ADVERTISED PROCUREMENTS A BIDDER'S FAILURE TO SUPPLY INFORMATION IN THE BID WHICH IS NECESSARY FOR A FULL AND COMPLETE EVALUATION OF THE BID WILL RENDER THE BID NONRESPONSIVE TO THE INVITATION FOR BIDS. MOREOVER, WHERE SUCH MATERIAL INFORMATION IS OMITTED FROM A BID IT MAY NOT BE SUPPLIED AFTER BID OPENING. 44 COMP. GEN. 34. SINCE BIDDERS WERE WARNED THAT THEIR ELIGIBILITY FOR CONSIDERATION AS A CERTIFIED-ELIGIBLE CONCERN, FOR THE PURPOSE OF PRIORITY IN THE NEGOTIATION OF THE SET-ASIDE PORTIONS, WAS PREDICATED UPON THE SUBMISSION OF A PROPER CERTIFICATION WITH THEIR BIDS, OUR OFFICE WOULD NOT BE WARRANTED IN DISAGREEING WITH A DETERMINATION TO CONSIDER A BIDDER WHICH DID NOT SUBMIT THE REQUIRED CERTIFICATE AS ONE WHICH HAS NOT BEEN QUALIFIED AS A -CERTIFIED ELIGIBLE- CONCERN.

BLE-

"IT MAY BE SAID THAT THE LABOR SURPLUS AREA PROVISIONS CARRY A CONNOTATION OF RESPONSIBILITY RATHER THAN RESPONSIVENESS IN THAT THEY STATE THAT -PRIORITY FOR NEGOTIATION WILL BE BASED UPON THE LABOR SURPLUS CLASS OF THE DESIGNATED PRODUCTION AREAS AS OF THE TIME OF THE PROPOSED AWARD.- HOWEVER, WE DO NOT REGARD THE QUOTED LANGUAGE AS INDICATIVE OF RESPONSIBILITY ON THE BASIS THAT EVIDENCE OF SURPLUS LABOR AREA CLASS MAY BE FURNISHED AFTER BID OPENING BUT PRIOR TO AWARD. IN THE CONTEXT OF THE ENTIRE PARAGRAPH, WHICH IS ENTITLED IDENTIFICATION OF AREAS OF PERFORMANCE,- THE QUOTED LANGUAGE MUST BE READ IN THE LIGHT OF THE PRECEDING SENTENCE: -IF THE DEPARTMENT OF LABOR CLASSIFICATION OF ANY SUCH AREA (THE GEOGRAPHIC AREA IDENTIFIED IN THE BID) CHANGES AFTER THE BIDDER HAS SUBMITTED HIS BID, THE BIDDER MAY CHANGE THE AREAS IN WHICH HE PROPOSES TO PERFORM, PROVIDED, THAT HE SO NOTIFIES THE CONTRACTING OFFICER BEFORE AWARD OF THE SET-ASIDE PORTION.-

"HENCE, UNDER THE LABOR SURPLUS AREA PROVISIONS, A BIDDER MAY CHANGE HIS AREA OF PERFORMANCE ORIGINALLY CERTIFIED IF THE CLASSIFICATION OF THAT AREA IS CHANGED BY THE DEPARTMENT OF LABOR BUT THE CHANGE MUST NOT RESULT IN AN ADVANCEMENT IN PRIORITY PREFERENCE. SEE B-156374, SEPTEMBER 3, 1965. IN OTHER WORDS, AN AUTHORIZED CHANGE IS PERMITTED PROVIDED THE BIDDER WILL PERFORM IN THE SAME CATEGORY STATED IN HIS BID, BUT NOT IF THE CHANGE WOULD IMPROVE HIS POSITION IN ORDER OF PRIORITY. WE THEREFORE REGARD THESE PROVISIONS AS UNRELATED TO RESPONSIBILITY SINCE THE BIDDER IS PRECLUDED FROM TAKING UNILATERAL ACTION AFFECTING HIS PREVIOUSLY STATED AREA OF PERFORMANCE AND ANY CHANGE, IF AUTHORIZED, IS ONE NOT AFFECTING HIS RELATIVE POSITION OF PRIORITY VIS-A-VIS OTHER BIDDERS.

"IN VIEW THEREOF, IT IS OUR OPINION THAT THE REQUIREMENT IN THE INVITATIONS AND THE RFP RESPECTING THE SUBMISSION OF EVIDENCE OF CERTIFICATION AS A -CERTIFIED-ELIGIBLE CONCERN- IS ONE OF RESPONSIVENESS AS TO WHICH THE CRITICAL TIME IS BID OPENING OR THE DATE FIXED FOR RECEIPT OF PROPOSALS.' SEE, ALSO, B-164115, AUGUST 30, 1968.

IN VIEW OF EASTERN SPECIALTY'S NONCOMPLIANCE WITH THE INSTRUCTIONS IN THE INVITATION AND PREVIOUS DECISIONS OF OUR OFFICE, SUCH BIDDER MAY NOT BE CONSIDERED FOR AWARD OF THE SET-ASIDE PORTION OF THE INVITATION. ACCORDINGLY, ON THE RECORD, YOUR PROTEST IS DENIED.