B-230298.7, Sep 20, 1989, 89-2 CPD 248

B-230298.7, Sep 20, 1989, 89-2 CPD 248

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Determination criteria DIGEST: Certification that 52 percent of manufacturing or production costs will be incurred by a subcontractor, made for purposes of establishing eligibility as a labor surplus area concern, does not render bid nonresponsive to Limitations on Subcontracting clause, which provided that submission of the bid constitutes agreement that bidder shall perform at least 50 percent of the cost of manufacturing "not including the cost of materials;" the calculations were based on different measurements-- total costs versus total costs other than the cost of materials.

Pluribus Products, Inc.:

Pluribus Products, Inc., protests the Defense Logistics Agency's (DLA) award of a contract to Tek-Lite, Inc., under invitation for bids (IFB) No. DLA400-88-B-1652, for ground obstruction marker lights. Pluribus alleges that Tek-Lite's bid was nonresponsive to the solicitation limitations on subcontracting and that, in any case, Pluribus' bid would have been found low had DLA properly evaluated bid prices.

We deny the protest.

RESPONSIVENESS

A portion of the acquisition was set aside for labor surplus area (LSA) concerns; in order to determine LSA eligibility, bidders were required to identify in their bids where "costs incurred (by the concern or its first tier subcontractor) on account of manufacturing or production" (performed in labor surplus areas) would amount to more than 50 percent of the contract price. See Department of Defense Federal Acquisition Regulation Supplement Sec. 252.220-7000. Pluribus argues that when Tek-Lite responded that 52 percent of the costs would be incurred by a subcontractor, and only 48 percent would be incurred by Tek-Lite, Tek-Lite thereby rendered its bid nonresponsive to another solicitation clause entitled Limitations on Subcontracting, which provides that submission of the bid constitutes agreement that "the concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials." Federal Acquisition Regulation (FAR) Sec. 52.219- 14.

We find the bid was responsive. The apportionment of effort under the two clauses was based on different measurements; that is, the percentage was taken against total cost incurred for purposes of the LSA determination, but against costs other than the cost of materials for purposes of the limitations on subcontracting. As a result, the fact that Tek-Lite proposed to subcontract 52 percent of total costs for LSA purposes was not inconsistent with the requirement that Tek Lite perform at least 50 percent of the work, not including the cost of materials.

VALUE ENGINEERING EVALUATION

The solicitation allowed bids on lights of either a basic design or a design based on a value engineering change proposal (VECP) that had been submitted by Tek-Lite. For each VECP unit purchased after the first 6,182 units, however, the government must pay a royalty fee of $5.71 to the developer; accordingly, while the solicitation as issued provided for the addition of a $5.71 evaluation factor to prices for all VECP units, it was amended to add that the VECP evaluation factor "will not be added to the price of each unit offered which incorporated this VECP, up to and including 6,182 units." Pluribus argues that the contracting officer evaluated Tek-Lite's bid improperly when he failed to add a VECP evaluation factor to the firm's price for the first 6,182 VECP units; according to the protester, the government buyer assured Pluribus that the VECP evaluation factor would be added to the price of all VECP units.

We find that the agency properly evaluated bids. As an initial matter, we note that the government buyer denies advising Pluribus after issuance of the amendment that the VECP evaluation factor would be added to bid prices for the first 6,182 VECP units. In any case, the language added by amendment clearly stated that the evaluation factor would not be added to the first 6,182 units and the advice Pluribus claims to have received was directly contrary to this language. The solicitation required bidders to request any explanation or interpretation of the solicitation in writing and cautioned that oral explanations given before award of a contract will not be binding. See FAR Sec. 52.214-6. Our Office has held that, in the face of such advice, a bidder relies on oral explanations-- especially those that are inconsistent with the solicitation's express terms-- at its own risk. A.R.S. Constr. Co., B-228476, Jan. 27, 1988, 88-1 CPD Para. 82.

Although Pluribus has raised other arguments concerning Tek-Lite's eligibility for award, we will not discuss them here, we find that they do not provide a basis for our Office to question the award.

The protest is denied.