B-218894.3, AUG 26, 1985, OFFICE OF GENERAL COUNSEL

B-218894.3: Aug 26, 1985

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PRECIS-UNAVAILABLE THE HONORABLE BUD SHUSTER: HOUSE OF REPRESENTATIVES WE HAVE RECEIVED YOUR LETTER OF JULY 5. SOME SMALL BUSINESS CONTRACTORS HAVE SUBMITTED NONRESPONSIVE BIDS BECAUSE OF CONFUSION IN INTERPRETING THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE (FEDERAL ACQUISITION REGULATION. SOME CONTRACTORS ARE MISINTERPRETING THE WORDS "ALL SUPPLIES TO BE FURNISHED" IN THE CLAUSE TO MEAN ALL RAW MATERIALS AND SUPPLIES THAT GO INTO THE END ITEM BEING PROCURED. WE HAVE RECOMMENDED THAT THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE BE REVIEWED AND THAT CONSIDERATION BE GIVEN TO CLARIFYING ITS WORDING. WE HAVE BEEN ADVISED THAT THE MATTER IS BEING REVIEWED.

B-218894.3, AUG 26, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE BUD SHUSTER:

HOUSE OF REPRESENTATIVES

WE HAVE RECEIVED YOUR LETTER OF JULY 5, 1985, IN REGARD TO THE PROTEST OF GINTER WELDING, INC., UNDER INVITATION FOR BIDS NO. DAAEO7 85-B-J320, A SMALL BUSINESS SET-ASIDE ISSUED BY THE DEPARTMENT OF THE ARMY. WE ENCLOSE COPIES OF OUR DECISIONS, GINTER WELDING INC., A 218894, MAY 29, 1985, 85-1 CPD PARA. 612, DENYING THE PROTEST, AND GINTER WELDING INC.-- RECONSIDERATION, B-218894.2, JULY 16, 1985, 85-1 CPD PARA. -, AFFIRMING THE DENIAL OF THE PROTEST.

ALTHOUGH WE DENIED THE PROTEST AS LACKING LEGAL MERIT, THE RECORDS IN THIS CASE AND OTHER CASES BEFORE OUR OFFICE DO SUGGEST THAT, AS YOU INDICATE IN YOUR LETTER, SOME SMALL BUSINESS CONTRACTORS HAVE SUBMITTED NONRESPONSIVE BIDS BECAUSE OF CONFUSION IN INTERPRETING THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE (FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 52.219-1 (1984)). SPECIFICALLY, SOME CONTRACTORS ARE MISINTERPRETING THE WORDS "ALL SUPPLIES TO BE FURNISHED" IN THE CLAUSE TO MEAN ALL RAW MATERIALS AND SUPPLIES THAT GO INTO THE END ITEM BEING PROCURED, RATHER THAN THE END ITEM ITSELF. THIS CONFUSION OVER THE PRESENT LANGUAGE OF THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE ALSO APPEARS TO BE CAUSING THE GOVERNMENT TO LOSE THE BENEFIT OF POTENTIALLY LOW BIDS.

THEREFORE, BY LETTERS TO THE DIRECTOR, FEDERAL ACQUISITION REGULATION SECRETARIAT, AND THE ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION, COPIES ENCLOSED, WE HAVE RECOMMENDED THAT THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE BE REVIEWED AND THAT CONSIDERATION BE GIVEN TO CLARIFYING ITS WORDING. WE HAVE BEEN ADVISED THAT THE MATTER IS BEING REVIEWED.