B-164011, MAY 21, 1968, 47 COMP. GEN. 664

B-164011, MAY 21, 1968, 47 COMP. GEN. 664

BIDS - TIE - PROCEDURE FOR RESOLVING TO BREAK THE TIE IN EQUAL LOW BIDS UNDER A TOTAL SET-ASIDE FOR SMALL BUSINESS, CONSIDERATION AFTER BID OPENING OF THE UTILIZATION OF LABOR IN THE PERFORMANCE OF THE CONTRACT, AND AWARD TO THE ,CERTIFIED ELIGIBLE" BIDDER WITH AN APPROVED PLAN TO EMPLOY DISADVANTAGED WORKERS IS PERMISSIBLE WHERE THE SELECTION OF THE CONTRACTOR IS MADE IN ACCORDANCE WITH PARAGRAPH 2-407.6 OF THE ARMED SERVICES PROCUREMENT REGULATION, PRESCRIBING PRIORITY PREFERENCE FOR BREAKING EQUAL LOW BIDS, AND WHERE THE CONSIDERATION OF FACTORS OUTSIDE THE BID IS IN THE BEST INTERESTS AND TO THE ADVANTAGE OF GOVERNMENT. HOWEVER, FOR THE PURPOSE OF RESOLVING TIE BIDS, FUTURE INVITATIONS THAT DO NOT INVOLVE LABOR SURPLUS AREA SET-ASIDES WILL REQUIRE BIDDERS TO FURNISH EVIDENCE OF PRIORITY STATUS.

TO SAMUEL F. SCHWAG, MAY 21, 1968:

YOU HAVE PREVIOUSLY FURNISHED TO OUR OFFICE COPIES OF YOUR LETTERS OF APRIL 9 AND 12, 1968, TO THE DEFENSE PERSONNEL SUPPORT CENTER, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS DSA100-68-B-1303 TO ANY BIDDER OTHER THAN MILAN GARMENT CO., INC.

THE INVITATION SOLICITED BIDS FOR FURNISHING 63,100 SERGE GREEN WOOL COVER SERVICE CAPS. THE PROCUREMENT IS A TOTAL SET-ASIDE FOR SMALL BUSINESS. MILAN GARMENT CO., INC., AND BANCROFT INDUSTRIES, INC., SUBMITTED LOW TIE BIDS.

YOU PROTEST BECAUSE THE CONTRACTING OFFICERS, FOR THE PURPOSE OF ATTEMPTING TO BREAK THE TIE, HAS INVITED BOTH BIDDERS TO FURNISH INFORMATION WITH RESPECT TO PROPOSED LABOR UTILIZATION IN THE PERFORMANCE OF THE CONTRACT AND HAS PROPOSED MAKING AN AWARD TO BANCROFT INDUSTRIES BECAUSE IT ALONE HAS FURNISHED A CERTIFICATION THAT IT IS A "CERTIFIED ELIGIBLE" CONCERN UNDER DMP4, REVISED, WHICH HAS AN APPROVED PLAN TO EMPLOY DISADVANTAGED WORKERS.

YOU CONTEND THAT THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THE CERTIFICATION OF "CERTIFIED ELIGIBLE" BE FURNISHED WITH THE BID. THE ONLY SECTIONS THAT HAVE SUCH A SPECIFIC REQUIREMENT ARE ASPR 1- 706.6 AND 1-804.2 (B) (1). THOSE SECTIONS PERTAIN TO PARTIAL SMALL BUSINESS SET-ASIDES AND LABOR SURPLUS AREA SET-ASIDES, RESPECTIVELY. NOTED ABOVE, THE PROCUREMENT HERE IS A TOTAL SMALL BUSINESS SET-ASIDE. THEREFORE, THOSE SECTIONS HAVE NO APPLICATION TO THIS PROCUREMENT.

ASPR 2-407.6 PROVIDES FOR THE DISPOSITION OF EQUAL LOW BIDS AS FOLLOWS: 2 -407.6 EQUAL LOW BIDS.

(A) (1) WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS, CONSIDERING ALL FACTORS EXCEPT THE PRIORITIES SET FORTH IN (2) BELOW, AWARD SHALL BE MADE IN ACCORDANCE WITH THE ORDER OF PRIORITIES THEREIN. WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS, CONSIDERING ALL FACTORS INCLUDING THE PRIORITIES SET FORTH IN (2) BELOW, AWARD SHALL BE MADE BY A DRAWING BY LOT WHICH SHALL BE WITNESSED BY AT LEAST THREE PERSONS AND WHICH MAY BE ATTENDED BY THE BIDDERS OR THEIR REPRESENTATIVES, SUBJECT TO (3) BELOW.

(2) FOR THE PURPOSES OF (1) ABOVE, PREFERENCE SHALL BE GIVEN IN THE FOLLOWING ORDER OF PRIORITY:

(I) CERTIFIED-ELIGIBLE CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS (1-701),

(II) OTHER CERTIFIED-ELIGIBLE CONCERNS,

(III) PERSISTENT LABOR SURPLUS AREA CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS (1-701),

(IV) OTHER PERSISTENT LABOR SURPLUS AREA CONCERNS,

(V) SUBSTANTIAL LABOR SURPLUS AREA CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS,

(VI) OTHER SUBSTANTIAL LABOR SURPLUS AREA CONCERNS,

(VII) OTHER SMALL BUSINESS CONCERNS.

(3) IF THE APPLICATION OF THE PRIORITIES IN (2) ABOVE RESULTS IN TWO OR MORE BIDDERS BEING ELIGIBLE FOR AWARD, THE AWARD SHALL BE MADE TO THE CONCERN THAT WILL MAKE THE MOST EXTENSIVE USE OF SMALL BUSINESS SUBCONTRACTORS, RATHER THAN BY DRAWING LOTS. IF TWO OR MORE BIDDERS STILL REMAIN ELIGIBLE FOR AWARD, THE AWARD SHALL BE MADE BY A DRAWING BY LOT LIMITED TO SUCH BIDDERS.

(B) WHEN AWARD IS TO BE MADE BY DRAWING BY LOT AND THE INFORMATION AVAILABLE SHOWS THAT THE PRODUCT OF A PARTICULAR MANUFACTURER HAS BEEN OFFERED BY MORE THAN ONE BIDDER, A PRELIMINARY DRAWING BY LOT SHALL BE MADE TO ASCERTAIN WHICH OF THE BIDDERS OFFERING THE PRODUCT OF A PARTICULAR MANUFACTURER WILL BE INCLUDED IN THE FINAL DRAWING TO DETERMINE THE AWARD.

(C) WHEN AN AWARD IS DETERMINED BY DRAWING BY LOT, THE NAMES AND ADDRESSES OF THE THREE WITNESSES AND THE PERSON SUPERVISING THE DRAWING SHALL BE PLACED ON ALL COPIES OF THE ABSTRACT OF BIDS OR OTHERWISE RECORDED.

(D) IN EACH AWARD WHERE PREFERENCE IS TO BE GIVEN UNDER THIS SECTION, THE CONTRACTING OFFICER SHALL, PRIOR TO AWARD, OBTAIN FROM SUCH CONCERN A WRITTEN STATEMENT THAT IT WILL PERFORM, OR CAUSE TO BE PERFORMED, THE CONTRACT IN ACCORDANCE WITH THE CIRCUMSTANCES JUSTIFYING THE PRIORITY.

THE INVITATION HERE INVOLVED DID NOT REQUIRE BIDDERS TO SUBMIT SUFFICIENT INFORMATION WITH THEIR BIDS TO DETERMINE THE PRIORITY CATEGORY OF EACH BIDDER. ALTHOUGH YOU STATE THAT MILAN GARMENT CO., INC., IS IN AN AREA OF PERSISTENT LABOR SURPLUS AND SHOULD HAVE A PRIORITY OVER BANCROFT INDUSTRIES WHICH, FROM THE RECORD, IS NOT IN A LABOR SURPLUS AREA, MILAN'S PRIORITY IS NOT ESTABLISHED BY ITS STATED PLACE OF PERFORMANCE SINCE PRIORITY IS NOT DETERMINED BY PLANT LOCATION BUT BY THE COSTS OF PRODUCTION IN LABOR SURPLUS AREAS. ASPR 1-801.1. HOWEVER, THE INVITATION DID NOT REQUIRE THE LATTER INFORMATION TO BE INCLUDED IN THE BID. THEREFORE, SUBSEQUENTLY FURNISHED INFORMATION BY YOUR CLIENT WOULD ALSO BE NECESSARY TO ESTABLISH ITS ELIGIBILITY AS A PERSISTANT LABOR SURPLUS AREA CONCERN. THUS, IT IS NOT ESTABLISHED FROM THE INFORMATION WHICH YOUR CLIENT SUBMITTED WITH ITS BID THAT IT HAD A HIGHER PRIORITY THAN BANCROFT INDUSTRIES BEFORE IT BECAME A "CERTIFIED ELIGIBLE" CONCERN.

THIS CASE IS NOT UNLIKE THAT CONSIDERED IN DECISION B-148720 OF MAY 7, 1962. IN THAT DECISION THE INVITATION DID NOT PROVIDE FOR THE FURNISHING OF SUFFICIENT INFORMATION TO DETERMINE WHETHER, UNDER ASPR, A BIDDER COULD BE REGARDED AS A LABOR SURPLUS AREA CONCERN SO AS TO BE ENTITLED TO A PREFERENCE OVER A FOREIGN BIDDER IN THE EVALUATION OF BIDS FOR AWARD. DECIDING THAT INFORMATION SECURED FOR THAT PURPOSE AFTER BID OPENING COULD BE CONSIDERED, IT WAS STATED:

UNDER ORDINARY CIRCUMSTANCES, DATA MATERIALLY AFFECTING THE EVALUATION OF BIDS SHOULD BE REQUIRED BY THE TERMS OF THE INVITATION. HOWEVER, SINCE THE INVITATION HERE CONTAINED NO PROVISION FOR SUBMITTING THE INFORMATION NEEDED TO DETERMINE WHETHER THE 6 OR 12 PERCENT DIFFERENTIAL SHOULD BE APPLIED, AND IN VIEW OF THE DELAYS ALREADY INCURRED IN THE PROCUREMENT, THE FACT THAT BIDS HAVE BEEN EXPOSED, AND THE FURTHER FACT THAT GOVERNMENTAL POLICY FAVORS PLACING CONTRACTS IN AREAS OF LABOR SURPLUS, WE ARE OF THE VIEW THAT THE DATA PROVIDED BY FARREL-BIRMINGHAM IN ITS LETTER OF FEBRUARY 19, 1962, PURSUANT TO THE CONTRACTING OFFICER'S REQUEST, MAY BE CONSIDERED, IN THIS INSTANCE, IN DETERMINING THE DIFFERENTIAL PROPERLY FOR APPLICATION. B-135176, MARCH 19, 1958; CF. 41 COMP. GEN. 160.

MOREOVER, OUR OFFICE HAS PERMITTED FACTORS OUTSIDE THE BID TO BE CONSIDERED IN BREAKING TIES, THE BEST INTERESTS AND ADVANTAGES TO BE GAINED BY THE GOVERNMENT BEING THE DECIDING FACTOR. SEE 20 COMP. GEN. 304. IN THE INSTANT CASE, THE ORDER OF PRIORITIES PROPOSED TO BE FOLLOWED TO BREAK THE TIE IS CONSISTENT WITH THE ORDER OF PRIORITY ESTABLISHED BY ASPR AS A MATTER OF PROCUREMENT POLICY. ACCORDINGLY, OUR OFFICE WOULD HAVE NO OBJECTION TO THE BREAKING OF THE TIE UNDER THE PREFERENCES PRESCRIBED BY ASPR 2-407.6. THE PROTEST IS THEREFORE DENIED.

WE HAVE BEEN ADVISED BY THE DEFENSE SUPPLY AGENCY THAT FUTURE INVITATIONS NOT INVOLVING LABOR SURPLUS AREA SET-ASIDES WILL REQUIRE BIDDERS TO FURNISH EVIDENCE OF PRIORITY STATUS FOR THE PURPOSE OF RESOLVING TIE BIDS.