B-171815, MAY 28, 1971

B-171815, MAY 28, 1971

BID PROTEST - BID RESPONSIVENESS - USE OF GOVERNMENT EQUIPMENT DENIAL OF PROTEST OF WILKINSON MANUFACTURING COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER IFB ISSUED BY ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY FOR AMMUNITION FUSES. AS INVITATION WAS UNDER LABOR SURPLUS AREA PROVISIONS, PROTESTANT'S BID WAS NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY A CERTIFICATE OF ELIGIBILITY. THE OTHER BIDS ARE NOT DEFECTIVE AS ALLEGED BECAUSE THEY FAILED TO INDICATE USE OF GOVERNMENT PROPERTY. THIS IS A MATTER OF RESPONSIBILITY, NOT RESPONSIVENESS, TO BE DETERMINED BY INVESTIGATION PRIOR TO AWARD.

TO STRASSER, SPIEGELBERG, FRIED, FRANK & KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF THE WILKINSON MANUFACTURING COMPANY, FORT CALHOUN, NEBRASKA, PROTESTING THE AWARD TO ANY OTHER FIRM OF THE LABOR SURPLUS SET-ASIDE PORTION OF INVITATION FOR BIDS (IFB) DAAA09-71-B 0069, ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

THE IFB PROVIDED FOR A LABOR SURPLUS AREA SET-ASIDE AND A NON-SET ASIDE OF 680,000 M524A6 FUZES FOR EACH PORTION. THE IFB UNDER THE HEADING, "NOTICE OF LABOR SURPLUS AREA SET-ASIDE," PROVIDES IN PART:

"(D) ELIGIBILITY BASED ON CERTIFICATION. WHERE ELIGIBILITY FOR PREFERENCE IS BASED UPON THE STATUS OF THE OFFEROR AS A 'CERTIFIED ELIGIBLE CONCERN,' THE OFFEROR SHALL FURNISH WITH HIS OFFER EVIDENCE OF ITS CERTIFICATION OR ITS FIRST TIER SUBCONTRACTORS' CERTIFICATION BY THE SECRETARY OF LABOR."

BIDS WERE OPENED NOVEMBER 6, 1970. THE WILKINSON BID WAS NOT ACCOMPANIED BY A CERTIFICATE THAT IT WAS A CERTIFIED ELIGIBLE CONCERN. FURTHER, PARAGRAPH (C) OF THE "NOTICE OF LABOR SURPLUS AREA SET-ASIDE" OF THE IFB PROVIDED THAT EACH OFFEROR DESIRING TO BE CONSIDERED FOR AWARD FOR THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE PROCUREMENT SHOULD IDENTIFY IN THE BID THE GEOGRAPHICAL AREA IN WHICH IT PROPOSED TO PERFORM THE CONTRACT. HOWEVER, IN THE SPACE PROVIDED FOR FURNISHING SUCH INFORMATION WILKINSON INSERTED "N/A." SUBSEQUENTLY, BY LETTER DATED DECEMBER 24, 1970, WILKINSON FORWARDED TO THE PROCURING ACTIVITY A CERTIFICATE OF ELIGIBILITY ISSUED ON DECEMBER 21, 1970, BY THE NEBRASKA DIVISION OF EMPLOYMENT, ESTABLISHING WILKINSON AS A LABOR SURPLUS AREA CONCERN WITH A GROUP ONE NEGOTIATION PRIORITY FOR THE SET ASIDE.

THE CONTRACTING OFFICER PROPOSES NOT TO CONSIDER THE CERTIFICATE OF ELIGIBILITY SINCE IT WAS NOT FURNISHED WITH THE BID. YOU CONTEND THAT WILKINSON COULD NOT HAVE FURNISHED THE CERTIFICATE WITH THE BID BECAUSE, AT THAT TIME, THE AREA SURROUNDING OMAHA, NEBRASKA, INCLUDING THE COUNTY WHERE WILKINSON IS LOCATED, WAS NOT A LABOR SURPLUS AREA. ON THE OTHER HAND, THE DEPARTMENT OF THE ARMY HAS QUESTIONED WHETHER THE LABOR SURPLUS SITUATION WAS SUCH THAT WILKINSON COULD NOT HAVE BEEN CERTIFIED PRIOR TO BID OPENING. HOWEVER, IT IS NOT NECESSARY FOR US TO DECIDE WHETHER THE CERTIFICATE COULD HAVE BEEN ISSUED PRIOR TO BID OPENING SINCE OUR OFFICE HELD IN 47 COMP. GEN. 543 (1968) THAT THE SUBMISSION OF EVIDENCE OF CERTIFICATION AS A "CERTIFIED ELIGIBLE CONCERN" IS A MATTER OF RESPONSIVENESS AS TO WHICH THE CRITICAL TIME IS BID OPENING. AS THE REQUIREMENT FOR SUBMISSION OF A CERTIFICATE WITH THE BID IS ONE OF RESPONSIVENESS, WILKINSON CANNOT BE ALLOWED TO SUBMIT SUCH A CERTIFICATE AFTER BID OPENING.

IN ADDITION TO THE FOREGOING, YOU CONTEND THAT OLIN CORPORATION SHOULD NOT BE CONSIDERED FOR THE LABOR SURPLUS SET-ASIDE BECAUSE IT SUBMITTED A NONRESPONSIVE BID IN THAT IT INDICATED THAT IT WOULD USE ONLY ONE OF THREE VALUE ENGINEERING CHANGE PROPOSALS WHEREAS THE IFB STATES THAT THE OFFEROR MUST USE ALL THREE OR NONE AND PROVIDES FOR THE ADDITION OF A ROYALTY FACTOR TO THE UNIT PRICE IF ALL THREE ARE UTILIZED. THE AMMUNITION PROCUREMENT AND SUPPLY AGENCY AGREES THAT THE BID IN NONRESPONSIVE. CONCUR SINCE THE EFFECT OF THE OLIN BID IS TO IMPOSE A DIFFERENT OBLIGATION UPON ITSELF THAN THE ADVERTISED ALTERNATIVES.

YOU ALSO CONTEND THAT THE FAILURE OF SEVERAL BIDDERS TO INDICATE IN THEIR BIDS THE USE OF GOVERNMENT-OWNED PROPERTY RENDERS THEIR BIDS NON RESPONSIVE AS THE FAILURE PRECLUDES THE ADDITION OF AN EVALUATION FACTOR TO THE BIDS TO ELIMINATE COMPETITIVE ADVANTAGE GAINED THROUGH THE USE OF GOVERNMENT-OWNED PROPERTY. HOWEVER, THE FAILURE OF THE BIDDERS TO INDICATE ANY USE OF GOVERNMENT-OWNED EQUIPMENT WOULD NOT BE A VALID CAUSE FOR REJECTION OF THEIR BIDS AS NONRESPONSIVE WHERE, AS HERE, THERE IS NO INDICATION THAT THE CONTRACT CANNOT BE PERFORMED WITHOUT THE USE OF GOVERNMENT-OWNED PROPERTY IN THE BIDDER'S POSSESSION. RATHER, THE CONTRACTING AGENCY HAS INDICATED THAT WHETHER A PROSPECTIVE CONTRACTOR WILL BE ABLE TO PERFORM WITHOUT THE USE OF GOVERNMENT-OWNED PROPERTY IS A MATTER THAT WILL BE INVESTIGATED BEFORE AN AWARD IS MADE AND THAT IF THE PROSPECTIVE CONTRACTOR IS INCAPABLE OF PERFORMING AS BID IT WILL NOT BE AWARDED A CONTRACT.

AS TO YOUR CONTENTION THAT THREE OF THE BIDDERS ON THE SUBJECT IFB ARE EXPERIENCING FINANCIAL DIFFICULTIES THAT WILL RENDER THEM NONRESPONSIBLE, IT IS REPORTED THAT THIS IS A MATTER OF RESPONSIBILITY THAT WILL BE CONSIDERED BY THE CONTRACTING OFFICER BEFORE ANY AWARD IS MADE.

ACCORDINGLY, THE WILKINSON PROTEST IS DENIED.