B-174709, FEB 7, 1972

B-174709: Feb 7, 1972

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IT IS THE BIDDER'S RESPONSIBILITY TO FURNISH TIMELY CERTIFICATION OF ELIGIBILITY AND. GAO MUST AGREE WITH THE CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT WAS NOT A "CERTIFIED-ELIGIBLE" CONCERN. TO SPACE ORDNANCE SYSTEMS: REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 7. THE LOADED CARTRIDGES WERE MADE THE SUBJECT OF A 50 PERCENT LABOR SURPLUS AREA SET-ASIDE. THE OPENING DATE WAS EXTENDED TO OCTOBER 29. IT WAS DETERMINED THAT THE LOWEST RESPONSIVE BID ON THE NON-SET-ASIDE PORTION OF THE SOLICITATION WAS SUBMITTED BY YOUR FIRM. IT WAS ALSO DETERMINED IN ACCORDANCE WITH ASPR CLAUSE 1-805.2(B) WHICH WAS CONTAINED IN AMENDMENT 0008. DID NOT QUALIFY FOR FIRST OR SECOND PREFERENCE FOR NEGOTIATION OF THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE SOLICITATION SINCE THE CERTIFICATE REQUIRED FOR QUALIFICATION AS A "CERTIFIED-ELIGIBLE" CONCERN WAS NOT SUBMITTED WITH ITS BID.

B-174709, FEB 7, 1972

BID PROTEST - CERTIFIED ELIGIBILITY - UNTIMELY SUBMISSION DECISION DENYING PROTEST OF SPACE ORDNANCE SYSTEMS AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER THE LABOR SURPLUS AREA SET-ASIDE PORTION OF AN IFB ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PA., FOR LOADED AND INERT IMPULSE CARTRIDGES. IT IS THE BIDDER'S RESPONSIBILITY TO FURNISH TIMELY CERTIFICATION OF ELIGIBILITY AND, SINCE THE NAVY ALLOWED ADEQUATE RESPONSE TIME, GAO MUST AGREE WITH THE CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT WAS NOT A "CERTIFIED-ELIGIBLE" CONCERN.

TO SPACE ORDNANCE SYSTEMS:

REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 7, 1971, AND JANUARY 12, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER THE LABOR SET-ASIDE PORTION OF INVITATION FOR BIDS N00104 71-B-1835, ISSUED BY THE U.S. NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

THE SUBJECT SOLICITATION, AS AMENDED, INVITED BIDS ON 881,890 LOADED IMPULSE CARTRIDGES AND 1,138 INERT IMPULSE CARTRIDGES. BY AMENDMENT 0008, DATED OCTOBER 5, 1971, THE LOADED CARTRIDGES WERE MADE THE SUBJECT OF A 50 PERCENT LABOR SURPLUS AREA SET-ASIDE, AND THE OPENING DATE WAS EXTENDED TO OCTOBER 29, 1971.

UPON THE OPENING OF BIDS, IT WAS DETERMINED THAT THE LOWEST RESPONSIVE BID ON THE NON-SET-ASIDE PORTION OF THE SOLICITATION WAS SUBMITTED BY YOUR FIRM. IT WAS ALSO DETERMINED IN ACCORDANCE WITH ASPR CLAUSE 1-805.2(B) WHICH WAS CONTAINED IN AMENDMENT 0008, THAT SPACE ORDNANCE SYSTEMS, INC. DID NOT QUALIFY FOR FIRST OR SECOND PREFERENCE FOR NEGOTIATION OF THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE SOLICITATION SINCE THE CERTIFICATE REQUIRED FOR QUALIFICATION AS A "CERTIFIED-ELIGIBLE" CONCERN WAS NOT SUBMITTED WITH ITS BID. THE SET ASIDE PORTION OF THE SOLICITATION PROVIDED THAT NEGOTIATION PRIORITY WOULD BE GIVEN TO FIRMS WHICH WERE CERTIFIED-ELIGIBLE, AND THAT OFFERORS SHOULD SUBMIT EVIDENCE OF SUCH CERTIFICATION WITH THEIR BIDS.

IT IS REPORTED THAT THE NON-SET-ASIDE PORTION OF THE PROCUREMENT HAS BEEN AWARDED TO YOUR FIRM, AND WE ARE ADVISED THAT THE NAVY IS PROCEEDING WITH AN AWARD OF THE SET-ASIDE PORTION TO ANOTHER FIRM.

YOU ALLEGE THE NAVY DID NOT ALLOW AN ADEQUATE RESPONSE TIME ON AMENDMENT NO. 0008 WHICH ESTABLISHED THE 50 PERCENT LABOR SURPLUS AREA SET-ASIDE. YOU STATE THAT AMENDMENT 0008 DATED OCTOBER 5, 1971, WAS RECEIVED BY YOUR FIRM ON OCTOBER 12, 1971; THAT YOUR FIRM PROMPTLY UNDERTOOK TO OBTAIN THE APPROPRIATE INFORMATION TO FILE FOR A CERTIFICATE; THAT THE DEPARTMENT OF LABOR DID NOT FURNISH A REPLY TO YOUR INQUIRY UNTIL OCTOBER 29, 1971; AND, THEREFORE, YOUR FIRM WAS UNABLE TO OBTAIN THE REQUIRED CERTIFICATE UNTIL NOVEMBER 2, 1971, OR AFTER THE BID OPENING.

THE GUIDELINES WHICH INDICATE THE TIME FRAME DURING WHICH THE DEPARTMENT OF LABOR LOCAL OFFICE MUST DECIDE TO ISSUE A CERTIFICATE OR DENY AN APPLICATION FOR CERTIFICATION ARE SET FORTH IN SECTION 4C OF ATTACHMENT 3 OF THE UNITED STATES DEPARTMENT OF LABOR TRAINING AND EMPLOYMENT SERVICE PROGRAM LETTER NO. 2558. THIS SECTION PROVIDES IN PERTINENT PART AS FOLLOWS:

"C. REVIEW OF APPLICATIONS FOR CERTIFICATION. WITHIN FIVE WORKING DAYS AFTER RECEIPT OF AN APPLICATION FOR CERTIFICATION, AN AUTHORIZED LOCAL ES STAFF MEMBER WILL REVIEW THE APPLICATION, PREFERABLY IN THE PRESENCE OF THE APPLYING EMPLOYER'S REPRESENTATIVE, TO INSURE THAT THE APPLICATION IS COMPLETED CORRECTLY AND TO CLARIFY ANY POINTS THAT MAY HAVE A BEARING ON THE EMPLOYER'S ELIGIBILITY FOR CERTIFICATION OR HIS ABILITY TO COMPLY WITH THE AGREEMENT.

"UPON COMPLETION OF THE REVIEW, THE MANAGER SHOULD VERIFY ALL INFORMATION WHICH IS NOT KNOWN TO BE FACTUAL. FOR EXAMPLE, IF THE MANAGER DOES NOT KNOW THAT PUBLIC TRANSPORTATION EXISTS IN THE MANNER DESCRIBED BY THE EMPLOYER'S REPRESENTATIVE, THE INFORMATION SHOULD BE VERIFIED. WHEN THE APPLICATION HAS BEEN REVIEWED, THE MANAGER WILL EITHER APPROVE OR DISAPPROVE THE APPLICATION AND PROCEED WITH THE ISSUANCE OR DENIAL OF THE CERTIFICATE."

IT APPEARS, BASED ON THE QUOTED PROVISION, THAT AN APPLICANT COULD APPLY FOR AND RECEIVE AN ELIGIBILITY CERTIFICATE WITHIN THE TIME FRAME PROVIDED BETWEEN THE ISSUANCE OF AMENDMENT 0008 ON OCTOBER 5 AND THE OCTOBER 29 BID OPENING. WHILE YOU CONTEND THAT THE AMENDMENT WAS NOT RECEIVED BY YOUR FIRM UNTIL OCTOBER 12 AND THAT THE DEPARTMENT OF LABOR WAS LATE IN RESPONDING TO YOUR REQUEST FOR INFORMATION CONCERNING THE FILING OF AN APPLICATION FOR CERTIFICATION, IT IS REPORTED BY THE CONTRACTING OFFICER THAT THE AMENDMENT WAS ISSUED TO PROSPECTIVE BIDDERS ON OCTOBER 5, 1971. THE FACT THAT THIS AMENDMENT MAY NOT HAVE BEEN TIMELY RECEIVED BY YOUR FIRM WOULD NOT JUSTIFY WAIVING THE REQUIREMENT TO FURNISH THE CERTIFICATE WITH YOUR BID. SEE 40 COMP. GEN. 126 (1960). FURTHERMORE, THOUGH WE ARE NOT AWARE OF THE CIRCUMSTANCES SURROUNDING YOUR ATTEMPT TO OBTAIN CERTIFICATION FROM THE DEPARTMENT OF LABOR PRIOR TO THE OCTOBER 29 BID OPENING, THE RESPONSIBILITY FOR OBTAINING AND FURNISHING A TIMELY CERTIFICATION RESTS WITH THE BIDDER.

IN VIEW OF YOUR FAILURE TO OBTAIN CERTIFICATION PRIOR TO THE BID OPENING, WE MUST AGREE WITH THE CONTRACTING AGENCY THAT YOUR FIRM COULD NOT BE CONSIDERED A "CERTIFIED-ELIGIBLE" CONCERN FOR PURPOSES OF THIS PROCUREMENT. SEE 47 COMP. GEN. 543, 546-549 (1968).

ACCORDINGLY, YOUR PROTEST IS DENIED.