B-181496, DEC 16, 1974

B-181496: Dec 16, 1974

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REQUIRES REJECTION OF BIDDER AS NONRESPONSIBLE IS NOT FOR CONSIDERATION SINCE GAO NO LONGER CONSIDERS PROTESTS REGARDING CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATIONS. 3. WHICH WAS UNTIMELY FILED WITH THE PROCURING ACTIVITY. WAS ISSUED BY THE WASHINGTON AREA PROCUREMENT CENTER. WILL BE OBTAINED PRIOR TO SUBCONTRACT AWARDS. THE ABOVE REPRESENTATION NEED NOT BE SUBMITTED IN CONNECTION WITH CONTRACTS OR SUBCONTRACTS WHICH ARE EXEMPT FROM THE CLAUSE.". ASSOCIATED CONTENDS THAT EASTERN'S AFFIRMATIVE MISSTATEMENT OF SUCH A MATERIAL FACT IS MORE THAN A MERE TECHNICAL ERROR AND CONSTITUTES A FALSE STATEMENT RENDERING ITS BID NULL AND VOID. ASSOCIATED ALLEGES THAT WHEREAS EASTERN MAINTAINS THAT IT QUALIFIED FOR A SMALL BUSINESS SET-ASIDE BY NOT BEING AFFILIATED WITH ANY OTHER ORGANIZATION OR COMPANY AND THAT IT WAS NOT SUBCONTRACTING ANY OF THE WORK TO BE PERFORMED.

B-181496, DEC 16, 1974

1. INFORMATION REQUIRED FOR CERTIFICATION PROVIDED IN ASPR 12-806 (B)(1)(B) (1973 ED.) CONCERNING BIDDER'S PARTICIPATION IN PREVIOUS CONTRACTS SUBJECT TO EQUAL OPPORTUNITY CLAUSE AND REGARDING BIDDER'S FILING OF REQUIRED COMPLIANCE REPORTS, RELATES TO BIDDER'S QUALIFICATIONS AS RESPONSIBLE PROSPECTIVE CONTRACTOR AND MAY BE FURNISHED OR CORRECTED UP TO TIME FOR AWARD. 2. ALLEGATION THAT BIDDER'S "WILLFUL" MISREPRESENTATION REGARDING CERTIFICATION REQUIRED BY ASPR 12-806(B)(1)(B) (1973 ED.) REQUIRES REJECTION OF BIDDER AS NONRESPONSIBLE IS NOT FOR CONSIDERATION SINCE GAO NO LONGER CONSIDERS PROTESTS REGARDING CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATIONS. 3. PROCURING ACTIVITY'S FAILURE TO FORWARD TO SBA PREAWARD PROTEST OF SMALL BUSINESS SIZE STATUS, WHICH WAS UNTIMELY FILED WITH THE PROCURING ACTIVITY, DOES NOT AFFECT VALIDITY OF AWARD UNDER SUBJECT SOLICITATION SINCE APPLICABLE ASPR PROVISION MAKES CLEAR THAT HAD SBA SUSTAINED PROTESTER'S APPEAL, DECISION WOULD AFFECT ONLY SIMILAR FUTURE PROCUREMENTS. SEE ASPR SEC. 1-703(B)(1)(B) (1973 ED.).

ASSOCIATED REFUSE AND COMPACTION SERVICE, INC.:

ON APRIL 29, 1974, INVITATION FOR BIDS (IFB) NO . F49642-74-09050, WAS ISSUED BY THE WASHINGTON AREA PROCUREMENT CENTER, ANDREWS AIR FORCE BASE, WASHINGTON, D.C. THE IFB SOLICITED BIDS ON THREE LINE ITEMS FOR THE FURNISHING OF REFUSE AND GARBAGE COLLECTION SERVICES AT VARIOUS LOCATIONS IN OR ABOUT BOLLING AND ANDREW AIR FORCE BASE.

THE INVITATION, AT SECTION B, PARAGRAPH 10, CONTAINED THE STANDARD EQUAL OPPORTUNITY REPRESENTATIONS PROVISION REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 12-806(B)(1)(B) (1973 ED.). THAT PROVISION, ENTITLED "PREVIOUS CONTRACTS AND COMPLIANCE REPORTS," STATES:

"THE OFFEROR REPRESENTS THAT HE (-) HAS, (-) HAS NOT, PARTICIPATED IN A PREVIOUS CONTRACT OR SUBCONTRACT SUBJECT EITHER TO THE EQUAL OPPORTUNITY CLAUSE HEREIN OR THE CLAUSE ORIGINALLY CONTAINED IN SECTION 301 OF EXECUTIVE ORDER NO. 10925, OR THE CLAUSE CONTAINED IN SECTION 201 OF EXECUTIVE ORDER NO. 11114; THAT HE (-) HAS, (-) HAS NOT, FILED ALL REQUIRED COMPLIANCE REPORTS; AND THAT REPRESENTATIONS INDICATING SUBMISSION OF REQUIRED COMPLIANCE REPORTS, SIGNED BY PROPOSED SUBCONTRACTORS, WILL BE OBTAINED PRIOR TO SUBCONTRACT AWARDS. THE ABOVE REPRESENTATION NEED NOT BE SUBMITTED IN CONNECTION WITH CONTRACTS OR SUBCONTRACTS WHICH ARE EXEMPT FROM THE CLAUSE." EASTERN TRANS-WASTE CORPORATION CHECKED "HAS" FOR EACH OF THE TWO CLAUSES OF THE ABOVE PROVISION.

BY LETTER DATED JULY 22, 1974, FROM ITS COUNSEL, ASSOCIATED REFUSE AND COMPACTION SERVICE, INC. (ASSOCIATED) PROTESTED THE AWARD TO EASTERN ALLEGING THAT EASTERN HAD NOT IN FACT FILED THE REQUIRED COMPLIANCE REPORTS AS IT HAD AFFIRMATIVELY INDICATED ON THE ABOVE SOLICITATION PROVISION IN ITS BID. ASSOCIATED CONTENDS THAT EASTERN'S AFFIRMATIVE MISSTATEMENT OF SUCH A MATERIAL FACT IS MORE THAN A MERE TECHNICAL ERROR AND CONSTITUTES A FALSE STATEMENT RENDERING ITS BID NULL AND VOID. MOREOVER, ASSOCIATED HAS ASSERTED VARIOUS ALLEGATIONS WHICH IT BELIEVES ESTABLISHES A COURSE OF CONDUCT BY EASTERN TO PURPOSELY MISINFORM THE GOVERNMENT AND TO ENHANCE ITS POSITION IN SECURING THE AWARD OF THE CONTRACT. SPECIFICALLY, ASSOCIATED ALLEGES THAT WHEREAS EASTERN MAINTAINS THAT IT QUALIFIED FOR A SMALL BUSINESS SET-ASIDE BY NOT BEING AFFILIATED WITH ANY OTHER ORGANIZATION OR COMPANY AND THAT IT WAS NOT SUBCONTRACTING ANY OF THE WORK TO BE PERFORMED, THE BIDDER IS IN FACT COMPLETELY CONTROLLED BY ANOTHER CORPORATION WHICH PROCURED FINANCING FOR ITS OPERATION AND THAT PERFORMANCE OF THE REQUIRED SERVICES HAS BEEN SUBCONTRACTED AND IS PRESENTLY BEING ACCOMPLISHED WITH EQUIPMENT, MATERIALS AND EMPLOYEES OF A CORPORATION NOT QUALIFIED FOR THE SUBJECT CONTRACT. THUS, THE PROTESTER CONTENDS THAT EASTERN'S INACCURATE COMPLETION OF THE EEO PROVISION MANIFESTED AN INTENT ON THE PART OF THE BIDDER TO MISREPRESENT MATERIAL FACTS TO THE GOVERNMENT.

THE RECORD INDICATES THAT SUBSEQUENT TO ASSOCIATED'S PROTEST AND PRIOR TO AWARD, THE CONTRACTING OFFICER REQUESTED EASTERN TO CLARIFY ITS POSITION AS TO THE ACCURACY OF ITS BID IN REGARD TO THE FILING OF THE COMPLIANCE REPORTS. IN A LETTER DATED AUGUST 15, 1974, EASTERN CERTIFIED THAT NEITHER IT NOR ITS AFFILIATE HAD EVER HELD A GOVERNMENT OR DISTRICT OF COLUMBIA CONTRACT IN AN AMOUNT OVER $10,000 AND THEREFORE HAS NEVER BEEN CONTRACTUALLY REQUIRED TO FILE ANY EEO REPORTS (SEE ASPR 12-805.). IT IS THE ADMINISTRATIVE POSITION THAT THE ERROR MADE BY EASTERN IN THE FILING OF ITS BID WAS HARMLESS AND MADE INADVERTENTLY, WHICH SHOULD BE WAIVED AS A MINOR INFORMALITY IN ACCORDANCE WITH ASPR 2-405(VI) (1973 ED.). REGARD TO THE PROTESTER'S ALLEGATION THAT THE ERROR CONSTITUTES A FALSE STATEMENT RENDERING THE BID NULL AND VOID, THE CONTRACTING AGENCY CONTENDS THAT THE FACTS SUBMITTED BY ASSOCIATED DO NOT ESTABLISH THAT EASTERN WILLFULLY OR INTENTIONALLY MISREPRESENTED A MATERIAL FACT SO AS TO RENDER ITS BID INELIGIBLE FOR AWARD.

AWARD WAS MADE TO EASTERN DURING THE PENDENCY OF THIS PROTEST ON THE BASIS THAT THE ONLY ALTERNATE METHOD OF OBTAINING THE REQUIRED SERVICES WOULD BE TO EXTEND THE EXISTING CONTRACT WHICH WAS DETERMINED NOT TO BE FINANCIALLY FEASIBLE IN VIEW OF THE LOWER PRICE BID BY EASTERN.

IN THIS REGARD, WE HAVE HELD THAT THE INFORMATION REQUIRED IN THE CERTIFICATION SET FORTH IN ASPR 12-806(B)(1)(B)(1973 ED.), CONCERNING A PROSPECTIVE BIDDER'S PARTICIPATION IN PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE AND REGARDING THE BIDDER'S FILING OF REQUIRED COMPLIANCE REPORTS, RELATES TO THE BIDDER'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR AND MAY THEREFORE BE FURNISHED UP TO THE TIME FOR AWARD. B-174932, MARCH 3, 1972; B-177081(1), JANUARY 9, 1973. IT IS CLEAR THAT THIS CLAUSE IS MERELY FOR INFORMATIONAL PURPOSES WHICH DOES NOT PERTAIN TO A BIDDER'S OBLIGATIONS UNDER THE AWARDED CONTRACT, BUT TO ITS PREVIOUS EFFORTS UNDER PRIOR CONTRACTS. MATTER OF ALLIS-CHALMERS CORPORATION, 53 COMP. GEN. 487 (1974); B-174307, APRIL 10, 1972. THIS IS CONSISTENT WITH THE STATEMENT IN ASPR 2-405(VI) (1973 ED.) THAT THE FAILURE TO EXECUTE THE CERTIFICATION SHOULD BE REGARDED AS A MINOR INFORMALITY WHICH CAN BE WAIVED AND SHOULD NOT BE CONSIDERED AS A MATTER OF BID RESPONSIVENESS.

IN REGARD TO THE PROTESTER'S ALLEGATION THAT EASTERN'S "WILLFUL" MISREPRESENTATION REQUIRES REJECTION OF THE BIDDER AS NONRESPONSIBLE, THIS OFFICE HAS DISCONTINUED THE PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICERS' AFFIRMATIVE RESPONSIBILITY DETERMINATIONS EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. SUCH DETERMINATIONS ARE BUSINESS JUDGMENTS WHICH ARE LARGELY WITHIN THE DISCRETION OF PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. SEE MATTER OF CENTRAL METAL PRODUCTS, INC., B-181724, JULY 26, 1974, 54 COMP. GEN. .

FINALLY, WITH REGARD TO ASSOCIATED'S ALLEGATION CONCERNING EASTERN'S STATUS AS A SMALL BUSINESS CONCERN, WE NOTE THAT SUCH PROTESTS ARE REQUIRED TO BE FILED WITH THE CONTRACTING OFFICER WITHIN FIVE WORKING DAYS AFTER BID OPENING. ASPR 1-703(B)(1) (1973 ED.). IN THIS CASE, WE HAVE BEEN ADVISED BY THE AIR FORCE THAT ASSOCIATED DID NOT PROTEST THIS MATTER TO THE CONTRACTING OFFICER WITHIN THE TIME PERIOD REQUIRED BY THE REGULATION. HOWEVER, UPON RECEIPT OF ASSOCIATED'S SIZE PROTEST BEFORE AWARD, EVEN THOUGH UNTIMELY, THE PROCURING ACTIVITY SHOULD HAVE FORWARDED THE MATTER TO SBA AS REQUIRED BY ASPR SEC. 1-703(B)(1)(B) (1973 ED.). WHILE WE HAVE BEEN ADVISED THAT THE QUESTION OF THE CONTRACTOR'S SIZE STATUS HAS NOT BEEN FORWARDED TO SBA FOR ITS CONSIDERATION IN FUTURE ACTIONS AS REQUIRED, IT IS CLEAR FROM THE REGULATION THAT EVEN IF SBA HAD SUSTAINED ASSOCIATED'S APPEAL, THAT DECISION WOULD NOT HAVE AFFECTED THE VALIDITY OF THE AWARD MADE TO EASTERN UNDER THE SUBJECT SOLICITATION . MATTER OF TELEPICPHONICS, INC., B-181501, OCTOBER 24, 1974. WE ARE RECOMMENDING TO THE SECRETARY OF THE AIR FORCE THAT THE PROTEST REGARDING THE CONTRACTOR'S SIZE STATUS BE SUBMITTED TO SBA AS REQUIRED BY REGULATION.

ACCORDINGLY, WE MUST CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS TO QUESTION THE PROPRIETY OF THE AWARD OF THE CONTRACT TO EASTERN, AND ASSOCIATED'S PROTEST AGAINST SUCH AWARD MUST THEREFORE BE DENIED.