B-218453.2, MAY 30, 1985, OFFICE OF GENERAL COUNSEL

B-218453.2: May 30, 1985

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WE HAVE ENCLOSED A COPY OF OUR DECISION MOUNTAINEER LEATHERS. SEC. 52.219-1 (1984)) - HAVE SUBMITTED NONRESPONSIVE BIDS BECAUSE OF CONFUSION IN INTERPRETING THE CLAUSE. 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. IT APPEARS THAT THE PRESENT LANGUAGE OF THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE IS CONFUSING SMALL BUSINESS CONTRACTORS DEALING WITH THE GOVERNMENT AND CAUSING THE GOVERNMENT TO LOSE THE BENEFIT OF POTENTIALLY LOW BIDS. WE HAVE RECOMMENDED THAT THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE SHOULD BE REVIEWED AND CONSIDERATION GIVEN TO CLARIFYING CHANGES TO ITS WORDING.

B-218453.2, MAY 30, 1985, OFFICE OF GENERAL COUNSEL

DIGEST: PRECIS-UNAVAILABLE

THE HONORABLE ALAN B. MOLLOHAN: HOUSE OF REPRESENTATIVES

DEAR MR. MOLLOHAN:

WE REFER TO YOUR LETTER OF APRIL 8, 1985, IN REGARD TO THE PROTEST OF MOUNTAINEER LEATHERS, INC., UNDER INVITATION FOR BIDS NO. DLA100-85 B-0262 ISSUED BY THE DEFENSE LOGISTICS AGENCY. WE HAVE ENCLOSED A COPY OF OUR DECISION MOUNTAINEER LEATHERS, INC., B-218453, MAY 6, 1985, 85-1 CPD PARA. ---, DENYING THE PROTEST.

ALTHOUGH WE DENIED THE PROTEST, WE NOTED FROM THE RECORD OF THIS CASE, AND INDEED FROM THE RECORDS OF THOSE CASES CITED IN OUR DECISION, THAT SOME SMALL BUSINESS CONTRACTORS-- ESPECIALLY THOSE CONTRACTORS UNINITIATED IN DEALING WITH THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE (FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 52.219-1 (1984)) - HAVE SUBMITTED NONRESPONSIVE BIDS BECAUSE OF CONFUSION IN INTERPRETING THE CLAUSE. 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.

IT APPEARS THAT THE PRESENT LANGUAGE OF THE SMALL BUSINESS CONCERN REPRESENTATION CLAUSE IS CONFUSING SMALL BUSINESS CONTRACTORS DEALING WITH THE GOVERNMENT AND 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 SHOULD BE REVIEWED AND CONSIDERATION GIVEN TO CLARIFYING CHANGES TO ITS WORDING.