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B-171298, JUN 17, 1971

B-171298 Jun 17, 1971
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ALTHOUGH AWARDS MADE ON THE BASIS OF PROTESTANT'S SUGGESTION WOULD HAVE RESULTED IN A $20. THE CONTRACTING OFFICER WAS OBLIGED TO MAKE THE INSTANT AWARD. IS NOT AWARE OF ANY BASIS FOR SO LIMITING THE COC AND THE MATTER IS BEING BROUGHT TO THE ATTENTION OF THE SMALL BUSINESS ADMINISTRATION. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR REQUEST THAT WE RECONSIDER OUR DECISION OF FEBRUARY 8. WE ADVISED YOU THAT IN NO EVENT COULD YOU HAVE RECEIVED FIRST CONSIDERATION FOR AWARD OF THE SET-ASIDE BECAUSE. YOU WERE NOT A SMALL BUSINESS CONCERN. WE CONCLUDED THAT AWARD OF THE SET-ASIDE TO FREE FASHIONS WAS PROPER SINCE IT WAS BOTH A CERTIFIED-ELIGIBLE CONCERN WITH A FIRST PREFERENCE AND A SMALL BUSINESS CONCERN.

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B-171298, JUN 17, 1971

BID PROTEST - SET ASIDE AWARD - LIMITED COC AFFIRMING PRIOR DECISION WHICH DENIED PROTEST AGAINST THE AWARD OF A CONTRACT TO FREE FASHIONS UNDER A SOLICITATION ISSUED BY THE DEFENSE SUPPLY AGENCY. ALTHOUGH AWARDS MADE ON THE BASIS OF PROTESTANT'S SUGGESTION WOULD HAVE RESULTED IN A $20,000 SAVINGS, BECAUSE THE SBA ISSUED A CERTIFICATE OF COMPETENCY TO FREE FASHIONS IN CONJUNCTION WITH THE SET ASIDE PORTION OF THE AWARD ONLY, THE CONTRACTING OFFICER WAS OBLIGED TO MAKE THE INSTANT AWARD. HOWEVER, THE COMP. GEN. IS NOT AWARE OF ANY BASIS FOR SO LIMITING THE COC AND THE MATTER IS BEING BROUGHT TO THE ATTENTION OF THE SMALL BUSINESS ADMINISTRATION.

TO AINSBROOKE DIVISION OF GENESCO, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR REQUEST THAT WE RECONSIDER OUR DECISION OF FEBRUARY 8, 1971, IN WHICH WE DENIED YOUR PROTEST AGAINST THE AWARD OF CONTRACTS BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, PURSUANT TO SOLICITATION NO. DSA100-71-B-0080, WHICH INCLUDED A LABOR SURPLUS AREA SET-ASIDE.

YOUR ORIGINAL PROTEST CONCERNED THE EFFECT OF YOUR FAILURE TO SUBMIT WITH YOUR BID A CERTIFICATE OF ELIGIBILITY FOR PREFERENCE AS A LABOR SURPLUS AREA CONCERN. WE HELD THAT THE FAILURE TO SUBMIT SUCH CERTIFICATION WITH YOUR BID PRECLUDED YOU FROM QUALIFYING AS A "CERTIFIED-ELIGIBLE" CONCERN. FURTHER, WE ADVISED YOU THAT IN NO EVENT COULD YOU HAVE RECEIVED FIRST CONSIDERATION FOR AWARD OF THE SET-ASIDE BECAUSE, IN ADDITION TO NOT QUALIFYING AS A "CERTIFIED-ELIGIBLE" CONCERN, YOU WERE NOT A SMALL BUSINESS CONCERN. THEREFORE, WE CONCLUDED THAT AWARD OF THE SET-ASIDE TO FREE FASHIONS WAS PROPER SINCE IT WAS BOTH A CERTIFIED-ELIGIBLE CONCERN WITH A FIRST PREFERENCE AND A SMALL BUSINESS CONCERN.

YOU NOW CONTEND THAT AWARD OF THE SET-ASIDE TO FREE FASHIONS WAS DELIBERATELY MANIPULATED SO AS TO CIRCUMVENT YOUR PROTEST AND MAKE THE QUESTION OF YOUR PRIORITY ACADEMIC. FURTHER, YOU CONTEND THAT SUCH MANIPULATION RESULTED IN AWARDS AT A HIGHER COST THAN WOULD OTHERWISE HAVE BEEN THE CASE. IN THIS CONNECTION, YOU ASSERT THAT IF THE TOTAL QUANTITY OF THE NON-SET-ASIDE HAD BEEN AWARDED TO FREE FASHIONS AND IF NANTEX RIVIERA HAD RECEIVED AWARD OF ALL OF THE SET-ASIDE, THE COST TO THE GOVERNMENT WOULD HAVE BEEN $81,348 LESS.

THE CONTRACTING OFFICER DENIES ANY MANIPULATION. HE REPORTS THAT INITIALLY HE DETERMINED FREE FASHIONS, THE LOW BIDDER, CAPABLE OF PRODUCING A QUANTITY OF 395,000 AND MADE AWARD ON OCTOBER 23, 1970, FOR THAT AMOUNT FROM THE UNRESTRICTED PORTION. FREE FASHIONS THEN APPLIED FOR A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION. NOVEMBER 25, 1970, SBA ISSUED A COC TO FREE FASHIONS FOR THE SET-ASIDE QUANTITY OF 1,974,396. THEREFORE, ON NOVEMBER 27, 1970, AWARD OF THE BALANCE OF THE UNRESTRICTED PORTION, 4,073,524, WAS AWARDED TO THE SECOND LOW BIDDER, NANTEX RIVIERA, AND ALL OF THE SET-ASIDE WAS AWARDED TO FREE FASHIONS. HE CONCEDES THAT THE AWARDS AS MADE WERE HIGHER THAN THEY WOULD HAVE BEEN IF MADE AS YOU SUGGEST, BUT STATES THAT THE DIFFERENCE WOULD HAVE BEEN ABOUT $20,000. THE AWARDS AS MADE TOTALED $2,698,777.78. AWARDS ON THE BASIS YOU SUGGEST WOULD HAVE TOTALED $2,679,055.11, COMPUTED AS FOLLOWS:

QTY. UNIT

BIDDER DEST. (PR.) BID PRICE AMOUNT

NANTEX AAT&SMTCOMB) 1,617,672 $ .4231 $ 684,437.02

SUT 481,456 .4381 210,925.87

2,099,128 $ 895,362.89

FREE NNT&NGTCOMB) 319,536 .398 127,175.33

FASHIONS NGT&NOTCOMB) 556,920 .412 229,451.04

SAT 546,396 .393 214,733.63

SUT 946,544 .393 371,991.79

2,369,396 $ 943,351.79

TOTALS 4,468,524 $1,838,714.68

SET-ASIDE SET-ASIDE GROSS BID PRICE

BIDDER DESTINATION QUANTITY ON FORMAL PORTION AMOUNT

NANTEX SAT 546,396 $ .393 $ 214,733.63

SUT 1,428,000 $ .4381 625,606.80

TOTALS 1,974,396 840,340.43

UNRESTRICTED $1,838,714.68

TOTAL $2,679,055.11 HOWEVER, THE CONTRACTING OFFICER STATES THAT SINCE THE COC WAS ISSUED TO FREE FASHIONS IN CONJUNCTION WITH THE SET-ASIDE HE WAS REQUIRED TO MAKE THE AWARD TO IT THEREUNDER.

WE FIND NOTHING IN THE RECORD BEFORE US TO INDICATE THAT THE CONTRACTING OFFICER MANIPULATED THE AWARD OF THE SET-ASIDE TO FREE FASHIONS TO CIRCUMVENT YOUR PROTEST. SINCE THE COC WAS BY ITS TERMS LIMITED TO THE "QUANTITY OF 1,974,396 UNITS SET ASIDE FOR LABOR SURPLUS AREA CONCERNS," THE AWARD TO FREE FASHIONS UNDER THE SET-ASIDE WAS IN ACCORDANCE THEREWITH. HOWEVER, WE ARE NOT AWARE OF ANY BASIS FOR SO LIMITING THE COC. IN THIS CONNECTION WE HAVE BEEN ADVISED THAT DSA HAS BROUGHT THE MATTER TO THE ATTENTION OF SBA SO THAT THE MATTER CAN BE CLARIFIED WITH RESPECT TO FUTURE PROCUREMENTS.

WE FIND NO BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER ACTED OTHER THAN IN GOOD FAITH IN THIS RESPECT OR THAT THE AWARDS WERE INVALID.

IN VIEW THEREOF, IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST TO DISTURB THE AWARDS OR PERFORMANCE THEREUNDER. THEREFORE, OUR DECISION OF FEBRUARY 8, 1971, IS AFFIRMED. HOWEVER, WE ARE BRINGING THIS MATTER TO THE ATTENTION OF APPROPRIATE PERSONNEL OF THE DEFENSE SUPPLY AGENCY.

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