B-179993, APR 4, 1974

B-179993: Apr 4, 1974

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AREA WHERE SUBCONTRACTOR WAS LOCATED WAS NOT LISTED BY UNITED STATES DEPARTMENT OF LABOR AS SUBSTANTIAL OR PERSISTENT LSA AREA WAS PROPERLY EVALUATED AS GROUP 7 PRIORITY - SMALL BUSINESS CONCERN NOT LOCATED IN LABOR SURPLUS AREA - AND. BIDS WERE OPENED ON MAY 17. WHITE PLAINS WAS AWARDED CONTRACT DSA 400-73-C -8925 ON JUNE 11. WHITE PLAINS IS NOW PROTESTING THE AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT TO THE DURA ELECTRIC LAMP CO. AWARD OF THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE PROCUREMENT IS GOVERNED BY THE PRIORITIES ESTABLISHED IN CLAUSE C35 OF THE IFB. LABOR SURPLUS CONCERNS AND SMALL BUSINESS CONCERNS ELIGIBLE *** WILL PARTICIPATE IN THE SET ASIDE IN THE FOLLOWING ORDER OF PRIORITY: "GROUP 1.

B-179993, APR 4, 1974

BIDDER WHOSE SUBCONTRACTOR FAILED TO SUBMIT CURRENT CERTIFICATION OF FIRST PREFERENCE ELIGIBILITY STATUS WITH ITS BID UNDER LABOR SURPLUS AREA SET-ASIDE PORTION OF PROCUREMENT, AND AREA WHERE SUBCONTRACTOR WAS LOCATED WAS NOT LISTED BY UNITED STATES DEPARTMENT OF LABOR AS SUBSTANTIAL OR PERSISTENT LSA AREA WAS PROPERLY EVALUATED AS GROUP 7 PRIORITY - SMALL BUSINESS CONCERN NOT LOCATED IN LABOR SURPLUS AREA - AND, THEREFORE, NOT ENTITLED TO PRIORITY IN NEGOTIATIONS.

TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC.:

THIS PROTEST BY THE WHITE PLAINS ELECTRICAL CO., INC. (WHITE PLAINS), OF ELMSFORD, NEW YORK, CONCERNS THE LABOR SURPLUS AREA SET-ASIDE PORTION OF INVITATIONS FOR BIDS (IFB'S) DSA-400-73-B-8105 AND DSA-400 73-B-A757 ISSUED APRIL 6, 1973, AND JUNE 20, 1973, RESPECTIVELY, BY THE DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA, FOR THE MANUFACTURE OF FLUORESCENT LAMP STARTERS.

BIDS WERE OPENED ON MAY 17, 1973, FOR IFB DSA-400-73-B-8105 WITH FOUR TIMELY BIDS BEING RECEIVED. WHITE PLAINS, BIDDING AS A REGULAR DEALER IN THE SUPPLIES OFFERED, INDICATED SURELITE PRODUCTS CO., INC., BRONX, NEW YORK, AS THE PLACE OF MANUFACTURE. AS LOW BIDDER ON THE NON-SET ASIDE PORTION OF THE PROCUREMENT, WHITE PLAINS WAS AWARDED CONTRACT DSA 400-73-C -8925 ON JUNE 11, 1973, FOR THE NON-SET-ASIDE PORTION. WHITE PLAINS IS NOW PROTESTING THE AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT TO THE DURA ELECTRIC LAMP CO., INC. (DURA) OF NEWARK, NEW JERSEY.

AWARD OF THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE PROCUREMENT IS GOVERNED BY THE PRIORITIES ESTABLISHED IN CLAUSE C35 OF THE IFB, IN PART, AS FOLLOWS:

"(2) DETERMINING PRIORITY FOR AWARD. LABOR SURPLUS CONCERNS AND SMALL BUSINESS CONCERNS ELIGIBLE *** WILL PARTICIPATE IN THE SET ASIDE IN THE FOLLOWING ORDER OF PRIORITY:

"GROUP 1. CERTIFIED-ELIGIBLE CONCERNS WITH A FIRST PREFERENCE WHICH ARE ALSO SMALL BUSINESS CONCERNS.

"GROUP 2. OTHER CERTIFIED-ELIGIBLE CONCERNS WITH A FIRST PREFERENCE.

"GROUP 3. CERTIFIED-ELIGIBLE CONCERNS WITH A SECOND PREFERENCE WHICH ARE ALSO SMALL BUSINESS CONCERNS.

"GROUP 4. OTHER CERTIFIED-ELIGIBLE CONCERNS WITH A SECOND PREFERENCE.

"GROUP 5. PERSISTENT OR SUBSTANTIAL LSA CONCERNS WHICH ARE ALSO SMALL BUSINESS CONCERNS.

"GROUP 6. OTHER PERSISTENT OR SUBSTANTIAL LSA CONCERNS.

"GROUP 7. SMALL BUSINESS CONCERNS WHICH ARE NOT LSA CONCERNS."

IN DETERMINING THE PRIORITY FOR THE AWARD OF THE LABOR SURPLUS AREA SET- ASIDE PORTION, IT WAS OBSERVED THAT WHITE PLAINS FAILED TO FURNISH ANY OF THE INFORMATION IN CLAUSE B2 ENTITLED "PREFERENCE FOR LABOR SURPLUS AREA CONCERNS" TO BE CONSIDERED FOR THE LSA PORTION OF THE PROCUREMENT, I.E., FURNISH WITH THE BID EVIDENCE THAT WHITE PLAINS OR ITS SUBCONTRACTOR IS A CERTIFIED-ELIGIBLE CONCERN WITH A FIRST PREFERENCE IN ACCORDANCE WITH 29 CFR 8.7(B) AND 8.9(C) AND THE ADDRESS AT WHICH THE COST INCURRED ON ACCOUNT OF MANUFACTURING OR PRODUCTION AMOUNT TO MORE THAN 25 PERCENT OF THE CONTRACT PRICE OR IDENTIFY THE PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA IN WHICH THE COSTS INCURRED ON ACCOUNT OF MANUFACTURING OR PRODUCTION AMOUNT TO MORE THAN 50 PERCENT OF THE CONTRACT PRICE. FURTHERMORE, IT IS ALSO NOTED THAT BRONX, NEW YORK, THE SITE AT WHICH THE UNITS OFFERED BY WHITE PLAINS ARE TO BE MANUFACTURED, IS NOT LISTED AS AN AREA OF SUBSTANTIAL OR PERSISTENT UNEMPLOYMENT IN THE APPLICABLE UNITED STATES DEPARTMENT OF LABOR PUBLICATION ENTITLED "AREA TRENDS IN EMPLOYMENT AND UNEMPLOYMENT." ACCORDINGLY, WHITE PLAINS WAS DETERMINED BY THE CONTRACTING OFFICER TO BE IN PRIORITY GROUP 7. DURA, A SMALL BUSINESS MANUFACTURER, SUPPLIED THE INFORMATION AS REQUIRED BY CLAUSE B2 IN ORDER TO BE CONSIDERED FOR THE LSA PORTION OF THE PROCUREMENT. IT IS ALSO LISTED IN "AREA TRENDS IN EMPLOYMENT AND UNEMPLOYMENT" AS AN AREA OF SUBSTANTIAL OR PERSISTENT UNEMPLOYMENT. THUS, IN ORDER OF PRIORITY OF CONSIDERATION FOR THE LSA SET-ASIDE PORTION OF THE PROCUREMENT, DURA QUALIFIED FOR PRIORITY GROUP 5. THEREFORE, DURA HAVING A GREATER PRIORITY IN CONSIDERATION FOR THE SET-ASIDE QUANTITY OF THE PROCUREMENT, WAS AWARDED CONTRACT DSA-400-73-C-9602.

WHITE PLAINS NOW CONTENDS THAT AS A SMALL BUSINESS FIRM IN A LABOR SURPLUS AREA, IT SHOULD HAVE BEEN ENTITLED TO GROUP 1 OR AT LEAST GROUP 5 PRIORITY FOR NEGOTIATIONS. WE DO NOT AGREE WITH THIS CONTENTION.

IN ORDER TO BE ENTITLED TO GROUP 1 PRIORITY, IT IS NECESSARY TO SUBMIT A CURRENT VALID CERTIFICATE OF ELIGIBILITY ISSUED BY THE LOCAL STATE DEPARTMENT OF LABOR. OUR OFFICE HAS CONSISTENTLY HELD THAT SUBMISSION WITH THE BID OF A BIDDER'S CERTIFICATE OF ELIGIBILITY FOR PRIORITY GROUP 1 IS A MATTER OF RESPONSIVENESS AND REQUIRED FOR EVALUATION OF A BIDDER'S ELIGIBILITY FOR AWARD OF THAT PORTION OF A PROCUREMENT SET ASIDE FOR LABOR SURPLUS AREA CONCERNS. SEE 47 COMP. GEN. 543 (1968), 51 COMP. GEN. 719 (1972).

WHITE PLAINS DID NOT SUBMIT A CERTIFICATE OF ELIGIBILITY WITH ITS BID. THERE IS EVIDENCE TO INDICATE THAT SURELITE PRODUCTS HAS BEEN ISSUED A CERTIFICATE BUT IT IS DATED NOVEMBER 14, 1973. THE CERTIFICATE WOULD NOT BE VALID FOR THIS PARTICULAR SET-ASIDE BECAUSE IT WAS SUBMITTED AFTER BID OPENING. OUR OFFICE HAS CONSISTENTLY UPHELD THE REQUIREMENT THAT CURRENT CERTIFICATION OF FIRST PREFERENCE STATUS MUST BE ACTUALLY SUBMITTED WITH THE BID IN ORDER TO SUPPORT A BIDDER'S RIGHT TO PRIORITY IN NEGOTIATION. SEE 51 COMP. GEN. 335 (1971).

IN ADDITION, WE FIND THAT WHITE PLAINS' CONTENTION AS TO GROUP 5 PRIORITY IS INCORRECT. WHITE PLAINS DOES NOT QUALIFY FOR GROUP 5 PRIORITY UNDER THE CURRENT QUALIFICATIONS. IN ORDER TO BE ELIGIBLE FOR GROUP 5 PRIORITY, THE BIDDER MUST BE A PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA CONCERN AND ALSO BE A SMALL BUSINESS. CLAUSE C35 OF THE IFB DEFINES PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA CONCERN AS A CONCERN THAT AGREES TO PERFORM OR CAUSE TO BE PERFORMED A SUBSTANTIAL PROPORTION OF A CONTRACT IN PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREAS. "AREA TRENDS IN EMPLOYMENT AND UNEMPLOYMENT" IDENTIFIES THE GEOGRAPHICAL AREAS BY CITY AND COUNTY WHICH ARE CLASSIFIED AS PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREAS. NEITHER THE BRONX, WHERE WHITE PLAINS' SUBCONTRACTOR IS LOCATED, NOR NEW YORK CITY IS CLASSIFIED AS A PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA ACCORDING TO THE UNITED STATES DEPARTMENT OF LABOR. IT IS OUR VIEW THAT THE CONTRACTING OFFICER PROPERLY USED THE DEPARTMENT OF LABOR PUBLICATION IN DETERMINING PRIORITY FOR THE LSA SET-ASIDE. THUS THE CONTRACTING OFFICER PROPERLY MADE THE AWARD TO DURA AS A GROUP 5 PRIORITY BIDDER AS OPPOSED TO WHITE PLAINS WHICH WAS APPROPRIATELY CONSIDERED TO BE IN PRIORITY GROUP 7.

BIDS WERE OPENED ON JULY 20, 1973, FOR IFB DSA-400-73-B-A757 WITH THREE TIMELY BIDS BEING RECEIVED. AGAIN, THE LOW BIDDER FOR ALL ITEMS ON THE NON-SET-ASIDE PORTION OF THE PROCUREMENT WAS WHITE PLAINS. SURELITE PRODUCTS, CO., INC., OF BRONX, NEW YORK WAS LISTED AS THE SUBCONTRACTOR AND AS THE PLACE OF THE MANUFACTURE. AS LOW BIDDER ON THE NON-SET-ASIDE PORTION, WHITE PLAINS WAS AWARDED CONTRACT DSA-400-74 C-1404 ON AUGUST 17, 1973. WHITE PLAINS IS AGAIN PROTESTING THE AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT TO DURA OF NEWARK, NEW JERSEY.

AWARD OF THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE PROCUREMENT IS GOVERNED BY THE SAME PRIORITIES ESTABLISHED IN CLAUSE C35 OF THE INSTANT IFB AS IN THE PREVIOUS PROTEST BY WHITE PLAINS.

IN DETERMINING THE PRIORITY FOR THE AWARD OF THE LABOR SURPLUS AREA SET- ASIDE PORTION, IT WAS OBSERVED THAT WHITE PLAINS HAD FAILED TO FURNISH ANY OF THE INFORMATION MADE MANDATORY BY IFB CLAUSE B24 TO BE CONSIDERED FOR THE LSA PORTION OF THE PROCUREMENT, I.E., IT DID NOT REPRESENT THAT IT OR ITS SUBCONTRACTOR, SURELITE PRODUCTS, IS A CERTIFIED-ELIGIBLE CONCERN NOR DID IT INSERT AN ADDRESS WHERE COST INCURRED ON ACCOUNT OF PRODUCTION OR MANUFACTURE WILL AMOUNT TO MORE THAN 50 PERCENT OF THE CONTRACT PRICE TO INDICATE THAT IT WAS OFFERING AS A PERSISTENT OR SUBSTANTIAL LSA CONCERN. AGAIN IT IS NOTED THAT BRONX, NEW YORK IS NOT LISTED AS AN AREA OF SUBSTANTIAL OR PERSISTENT UNEMPLOYMENT IN THE APPLICABLE "AREA TRENDS IN EMPLOYMENT AND UNEMPLOYMENT." ACCORDINGLY, WHITE PLAINS WAS AGAIN DETERMINED TO BE IN PRIORITY GROUP 7. DURA SUPPLIED THE INFORMATION REQUIRED BY CLAUSE B24. ITS LOCATION WAS ALSO LISTED IN THE DEPARTMENT OF LABOR PUBLICATION AS AN AREA OF PERSISTENT OR SUBSTANTIAL AREA OF UNEMPLOYMENT. THUS, IN ORDER OF PRIORITY FOR THE LSA SET-ASIDE PORTION OF THE PROCUREMENT, DURA AGAIN QUALIFIED FOR PRIORITY GROUP 5. THEREFORE, DURA, HAVING FIRST PRIORITY IN CONSIDERATION FOR THE SET ASIDE QUANTITY WAS AWARDED CONTRACT DSA-400-74-C-2039.

WHITE PLAINS AGAIN CONTENDS THAT AS A SMALL BUSINESS FIRM IN A LABOR SURPLUS AREA, IT WAS ENTITLED TO GROUP 1 OR AT LEAST GROUP 5 PRIORITY FOR NEGOTIATIONS. AS BEFORE, WE DO NOT AGREE WITH THIS CONTENTION.

WHITE PLAINS DID NOT SUBMIT A CURRENT VALID CERTIFICATE OF ELIGIBILITY. CURRENT CERTIFICATION OF FIRST PREFERENCE STATUS MUST BE ACTUALLY SUBMITTED WITH THE BID IN ORDER TO SUPPORT A BIDDER'S RIGHT TO PRIORITY IN NEGOTIATION. SEE 51 COMP. GEN. 335 (1971).

FURTHERMORE, WE FIND THAT FOR THE SAME REASONS IN THE ABOVE PROTEST, WHITE PLAINS' CONTENTION THAT IT SHOULD HAVE RECEIVED GROUP 5 PRIORITY IS INCORRECT. WHITE PLAINS IS NOT LISTED AS PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA CONCERN ACCORDING TO THE DEPARTMENT OF LABOR PUBLICATION WHICH IDENTIFIES AREAS OF PERSISTENT OR SUBSTANTIAL UNEMPLOYMENT. THE CONTRACTING OFFICER PROPERLY MADE THE DETERMINATION THAT THE SET-ASIDE PORTION SHOULD BE AWARDED TO DURA AS A PRIORITY GROUP 5 BIDDER.

WHITE PLAINS' CONTENTION THAT ITS SUBCONTRACTOR SURELITE IS LOCATED IN A LABOR SURPLUS AREA IS CORRECT. HOWEVER, THE CONTRACTING OFFICER'S DETERMINATION THAT THE SUBCONTRACTOR WAS NOT IN A LABOR SURPLUS AREA IS NOT SIGNIFICANT SINCE THE BRONX IS NOT LISTED AS A SUBSTANTIAL OR PERSISTENT LSA AREA ACCORDING TO THE UNITED STATES DEPARTMENT OF LABOR. IT IS LISTED ONLY AS AN AREA OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT AND BIDDERS ARE NOT ELIGIBLE FOR LABOR SURPLUS AREA SET ASIDES SIMPLY BECAUSE THEY ARE LOCATED IN SUCH AREAS.

ACCORDINGLY, THE PROTESTS ARE DENIED.