B-173489, SEP 15, 1971, 51 COMP GEN 168

B-173489, SEP 15, 1971, 51 COMP GEN 168

BIDDERS - QUALIFICATIONS - SECURITY CLEARANCE THE PROVISION IN AN INVITATION FOR BIDS TO IMPROVE A NAVY FACILITY THAT STATED "ONLY BIDS RECEIVED FROM CONTRACTORS HAVING ACTIVE FACILITIES SECURITY CLEARANCE OF CONFIDENTIAL OR HIGHER WILL BE CONSIDERED" DOES NOT REQUIRE THAT A BIDDER HAVE THE NECESSARY CLEARANCE ON THE DATE OF BID OPENING TO BE CONSIDERED AS THE REQUIREMENT IS NOT A CONDITION PRECEDENT TO THE SUBMISSION OF A BID BUT RATHER CONSTITUTES AN ASPECT OF BIDDER RESPONSIBILITY, EVIDENCE OF WHICH IS FOR SUBMISSION BY THE TIME PERFORMANCE IS REQUIRED. THEREFORE, THE BIDS OF THE LOW BIDDER WHO DID NOT POSSESS CLEARANCE AND THE SECOND LOW BIDDER WHO ONLY HELD AN INTERIM CLEARANCE AT BID OPENING TIME MAY BE CONSIDERED. FURTHERMORE, AN INTERIM CLEARANCE IS AS VALID AS A FINAL ONE, AND THE GRANT OR DENIAL OF A SECURITY CLEARANCE TO BIDDERS OR CONTRACTORS IS A DISCRETIONARY ACT THAT WILL NOT BE QUESTIONED UNLESS THE CLEARANCE WAS IMPROPERLY ISSUED.

TO KIRKLAND, ELLIS, HODSON, CHAFFETZ, MASTERS & ROWE, SEPTEMBER 15, 1971:

REFERENCE IS MADE TO YOUR LEGAL MEMORANDUM RECEIVED ON AUGUST 31, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF OCEAN ELECTRIC CORPORATION, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER, UNDER INVITATION FOR BIDS (IFB) NO. N62470-71-B-0859, ISSUED BY THE DEPARTMENT OF THE NAVY, NAVAL FACILITIES ENGINEERING COMMAND, ATLANTIC DIVISION, NORFOLK, VIRGINIA.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST OF OCEAN ELECTRIC IS DENIED.

THE IFB, ISSUED ON MAY 20, 1971, AS A SMALL BUSINESS SET-ASIDE, SOLICITED BIDS FOR A CONSTRUCTION CONTRACT TO MODIFY AND IMPROVE THE EXISTING AIR- CONDITIONING AND HEATING SYSTEMS, IMPROVE THE ELECTRICAL LIGHTING AND POWER SYSTEMS, REPLACE CERTAIN PLUMBING FIXTURES AND TOILET PARTITIONS, AND INCIDENTAL RELATED WORK AT THE NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, NORFOLK, VIRGINIA. BIDS WERE OPENED AS SCHEDULED ON JUNE 22, 1971, AND WERE ABSTRACTED AS FOLLOWS:

BIDDER PRICE

JOSEPH S. FLOYD CORPORATION $675,346

PARKER SPARKS, INC. 785,000

OCEAN ELECTRIC CORPORATION 809,074

LEON H. PERLIN CO. 815,900

VANGUARD CONSTRUCTION CORP. 870,281

J. E. WEDDLE & ASSOCIATES 879,325

BOTH THE COVER SHEET AND BID FORM OF THE IFB CONTAIN THE FOLLOWING STATEMENT:

ONLY BIDS RECEIVED FROM CONTRACTORS HAVING ACTIVE FACILITIES SECURITY CLEARANCE OF CONFIDENTIAL OR HIGHER WILL BE CONSIDERED.

IN THIS REGARD, PARAGRAPH 1A.14 OF THE IFB SPECIFICATIONS PROVIDES AS FOLLOWS:

1A.14 SECURITY REQUIREMENTS. NO EMPLOYEE OR REPRESENTATIVE OF THE CONTRACTOR WILL BE ADMITTED TO THE SITE OF THE WORK UNLESS HE FURNISHES SATISFACTORY PROOF THAT HE IS A CITIZEN OF THE UNITED STATES OR IF AN ALIEN, HIS RESIDENCE WITHIN THE UNITED STATES IS LEGAL. NO EMPLOYEE OR REPRESENTATIVE OF THE CONTRACTOR WILL BE ADMITTED TO THE CLASSIFIED AREAS OF THE WORK UNTIL HE HAS RECEIVED A SECURITY CLEARANCE FOR CONFIDENTIAL. WORKMEN WILL BE PERMITTED ACCESS TO ONLY THOSE AREAS WITHIN THE EXISTING BUILDING WHERE WORK IS TO BE PERFORMED HEREUNDER. PERSONNEL SECURITY CLEARANCE FOR HIS EMPLOYEES TO HAVE ACCESS TO THE SITE SHALL BE INITIATED AND OBTAINED THROUGH THE OFFICER IN CHARGE, WHO WILL FURNISH NECESSARY INSTRUCTIONS. INITIATION OF CLEARANCE WILL REQUIRE SUBMITTAL OF DETAILED INFORMATION REGARDING EACH PERSON TO BE CLEARED. CLEARANCE IS EXPECTED TO REQUIRE SIX WEEKS TO TWO MONTHS. DURING THE BIDDING PERIOD, CONTRACTORS HAVING THE PROPER SECURITY CLEARANCE WILL BE ALLOWED TO INSPECT AREAS OF THE EXISTING BUILDING IN WHICH WORK IS TO BE PERFORMED HEREUNDER. CONTRACTORS MUST BE ESCORTED DURING INSPECTION IN SECURITY AREAS. THE CONTRACTOR SHALL BE REQUIRED TO ARRANGE WITH THE SECURITY OFFICER, NAVAL AIR REWORK FACILITY, U.S. NAVAL AIR STATION TO OBTAIN REQUIRED IDENTIFICATION BADGES FOR EACH OF HIS EMPLOYEES AND SHALL BE HELD RESPONSIBLE FOR STRICT ACCOUNTABILITY OF ALL BADGES ISSUED TO HIS EMPLOYEES. ANY PERSON VIOLATING SECURITY REGULATIONS SHALL BE DENIED FURTHER ENTRANCE TO THE BUILDING. THESE REQUIREMENTS ARE IN ADDITION TO THE BASIC "SECURITY REQUIREMENTS" PARAGRAPH IN THE SECTION ENTITLED "ADDITIONAL GENERAL PARAGRAPHS."

IN VIEW OF THESE STATEMENTS IN THE IFB, THE NAVY REQUESTED INFORMATION FROM THE TWO REGIONAL OFFICES OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES (DCAS) AS TO WHICH BIDDERS HELD ACTIVE FACILITIES SECURITY CLEARANCES AT THE TIME OF BID OPENING. THE RESPONSES OF THE DCAS REGIONAL OFFICES, RECEIVED BY THE NAVY ON JUNE 25 AND 26, 1971, ARE QUOTED, IN PERTINENT PART, BELOW:

AS OF 2:00 P.M. 22 JUNE 1971 OCEAN ELECTRIC CORP. *** HELD A SECRET CLEARANCE, PARKER-SPARKS INC. *** WAS ELIGIBLE FOR AN INTERIM SECRET CLEARANCE; HOWEVER, ADMINISTRATIVE PROCESSING HAD NOT BEEN COMPLETED BY THIS HEADQUARTERS. JOSEPH S. FLOYD CORP. *** , LEON H. PEARLING COMPANY, INC. *** AND J. E. WEDDLE ASSOCIATES, INC. *** WERE NOT CLEARED FACILITIES.

*** VANGUARD CONSTRUCTION CORPORATION *** CLEARED SECRET 20 MARCH 1969

WITH THIS INFORMATION IN HAND, THE NAVY REFUSED TO CONSIDER THE LOW BID OF JOSEPH S. FLOYD CORPORATION FOR AWARD, SINCE THAT FIRM DID NOT POSSESS THE REQUIRED SECURITY CLEARANCE, AND, IN FACT, HAD NOT APPLIED FOR THE CLEARANCE UNTIL ONLY 2 WORKING DAYS BEFORE BID OPENING. BY LETTER DATED JUNE 29, 1971, THE COGNIZANT DCAS REGIONAL OFFICE ADVISED THE NAVY THAT THE SECOND LOW BIDDER, PARKER-SPARKS, "IS CLEARED: INTERIM SECRET." THE PRESIDENT OF OCEAN ELECTRIC, BY LETTER OF JUNE 29, 1971, FILED A PROTEST BEFORE AWARD WITH OUR OFFICE ON THE GROUND THAT ANY CONTEMPLATED AWARD BY THE NAVY TO PARKER-SPARKS WOULD BE IMPROPER BECAUSE THAT FIRM DID NOT POSSESS AN ACTIVE FACILITIES SECURITY CLEARANCE OF CONFIDENTIAL OR HIGHER ON THE DATE OF BID OPENING AS REQUIRED BY THE IFB.

INITIALLY, YOU CONTEND THAT THE "ISSUANCE OF EVEN AN INTERIM SECURITY CLEARANCE TO PARKER-SPARKS, INC., SOME SEVEN DAYS AFTER BID OPENING WAS IN ITSELF CONTRARY TO THE REGULATIONS OF THE DEPARTMENT OF DEFENSE GOVERNING THE ISSUANCE OF SECURITY CLEARANCES AND THUS ILLEGAL AND OF NO EFFECT." EXPANDING ON THIS CONTENTION, YOU STATE THAT THE INTERIM SECRET FACILITIES CLEARANCE GRANTED PARKER-SPARKS IS NOT FULLY AS VALID AS THE FINAL SECRET SECURITY CLEARANCE NECESSITATED BY THE IFB. THE NAVY REBUTS THIS CONTENTION BY ASSERTING THAT "IT IS OUR POSITION THAT THE INDUSTRIAL SECURITY REGULATION WHICH GOVERNS THE DEPARTMENT OF DEFENSE IN SECURITY MATTERS, ARE INTERNAL REGULATIONS, MINOR VIOLATIONS OF WHICH WOULD NOT RENDER ACTIONS ILLEGAL." FURTHERMORE, THE NAVY ADVISED THAT "AN INTERIM CLEARANCE IS FULLY AS VALID AS THE FINAL CLEARANCE AS FAR AS ACCESS TO CLASSIFIED MATERIALS AND AREAS IS CONCERNED, AND IS ISSUED AS AN EXPEDIENT WHERE CIRCUMSTANCES DICTATE."

THE GRANT OR DENIAL OF SECURITY CLEARANCES TO BIDDERS OR CONTRACTORS IS A MATTER WITHIN THE DISCRETION OF THE DEPARTMENT OF DEFENSE (DOD). IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT A SECURITY CLEARANCE WAS IMPROPERLY ISSUED, WE HAVE HELD THAT THE GRANT OF SUCH CLEARANCE TO A BIDDER OR CONTRACTOR WILL NOT BE QUESTIONED. CF. B 159469, B-160265, MARCH 22, 1967. WHILE THE NAVY MAY NOT HAVE STRICTLY FOLLOWED THE PROVISIONS OF THE DOD INDUSTRIAL SECURITY REGULATION (DOD ISR), (DOD DIRECTIVE NO. 5220.22-R), IN INITIATING A SECURITY CLEARANCE REQUEST FOR PARKER-SPARKS, THERE IS NO EVIDENCE THAT THE INTERIM SECRET CLEARANCE WAS IMPROPERLY GRANTED BY DCAS, THE AGENCY WITHIN DOD RESPONSIBLE FOR ISSUING SUCH CLEARANCES. MOREOVER, OUR REVIEW OF THE APPROPRIATE SECURITY REGULATIONS UNCOVERS NO DISTINCTION BETWEEN THE LEVEL OF CLASSIFIED INFORMATION TO WHICH A CONTRACTOR HOLDING A FINAL FACILITY SECURITY OR AN INTERIM FACILITY SECURITY CLEARANCE WOULD HAVE ACCESS.

YOU URGE THAT THE TWO LOWER BIDDERS ARE NOT ELIGIBLE FOR AWARD SINCE NEITHER BIDDER POSSESSED A SECURITY CLEARANCE OF CONFIDENTIAL OR ABOVE AT THE DATE OF BID OPENING. DCAS INFORMED THE NAVY 3 WORKING DAYS AFTER BID OPENING THAT, AS OF THE DATE OF BID OPENING, PARKER-SPARKS WAS "ELIGIBLE" FOR AN INTERIM SECRET CLEARANCE. BY LETTER DATED 5 WORKING DAYS AFTER BID OPENING, DCAS ADVISED THE NAVY THAT PARKER SPARKS POSSESSED AN INTERIM SECRET CLEARANCE. ALSO, WE NOTE THAT PARKER-SPARKS INITIATED ITS REQUEST FOR A SECURITY CLEARANCE ON AN EXPEDITED BASIS BY LETTER DATED MAY 20, 1971, THE SAME DAY THE IFB WAS ISSUED. BY SPEEDLETTER OF MAY 25, 1971, THE NAVY REQUESTED THAT THE COGNIZANT DCAS REGIONAL OFFICE PROCESS A FACILITY SECURITY CLEARANCE OF SECRET FOR PARKER-SPARKS. MOREOVER, PARKER -SPARKS FORWARDED THE NECESSARY SECURITY AGREEMENT FORMS BY JUNE 11, 1971, TO THE COGNIZANT DCAS REGIONAL OFFICE TO FULFILL THE PROCESSING REQUIREMENTS OF ITS SECURITY CLEARANCE REQUEST.

IN ITS INITIAL REPORT ON THE PROTEST TO OUR OFFICE, THE NAVY STATED THAT, ON THE BASIS OF THE DCAS INFORMATION OF JUNE 25, "THIS COMMAND CONSIDERED THAT THE FIRM OF PARKER-SPARKS, INC., WAS CLEARED FOR AN ACTIVE FACILITIES CLEARANCE OF INTERIM SECRET AS OF THE DAY OF BID OPENING, AND WAS ACCORDINGLY, ELIGIBLE TO RECEIVE AWARD OF THIS CONTRACT." IN A SUPPLEMENTAL REPORT TO OUR OFFICE, THE NAVY CHANGED ITS POSITION AND ADVISED:

*** THE FIRM OF PARKER-SPARKS HAD BEEN INVESTIGATED BY DCASR BEFORE THE BID OPENING DATE, AND THIS INVESTIGATION HAD SATISFIED DCASR THAT THE FIRM WAS ELIGIBLE FOR AN INTERIM CLEARANCE. UNDER THESE CIRCUMSTANCES, IT WAS CONSIDERED THAT THE FIRM HAD MET OUR MANDATORY REQUIREMENT, THAT THE SUCCESSFUL FIRM BE ABLE TO BEGIN PERFORMANCE IMMEDIATELY UPON RECEIVING NOTICE OF AWARD. DELAY OF AWARD PENDING FINAL CLEARANCE WOULD HAVE CREATED CRUCIAL DELAYS, AND THEREFORE THE INTERIM CLEARANCE WAS ACCEPTED.

AS NOTED EARLIER, THIS COMMAND'S BASIC REQUIREMENT IN THE PROCUREMENT WAS FOR A CONTRACTOR WHO COULD BEGIN WORK IMMEDIATELY UPON RECEIPT OF A NOTICE OF AWARD. THIS REQUIREMENT WAS MANDATORY, AND WAS NOT WAIVED AS CONTENDED BY THE PROTESTANT. WHAT WAS WAIVED WAS ANY NECESSITY FOR THE BIDDER TO HAVE THE CLEARANCE IN HAND ON 22 JUNE, THE DAY OF BID OPENING. THIS WAS WAIVED AS A MINOR ITEM, SO LONG AS THE AFOREMENTIONED MANDATORY REQUIREMENT WAS MET. AWARD WAS NOT WITHHELD "PENDING THEIR CLEARANCE," AS CONTENDED BY THE PROTESTANT, NOR WAS THAT FIRM AFFORDED ANY SPECIAL TREATMENT.

WE NOTE THAT SECTION 2-102B OF THE DOD ISR RECOGNIZES THE POSSIBILITY OF THE ISSUANCE OF AN INTERIM SECURITY CLEARANCE WHERE AN AWARD MUST PROCEED DUE TO URGENCY. IN THIS REGARD, YOU BELIEVE THAT THE NAVY'S ATTEMPT TO WAIVE THE REQUIREMENT FOR A BIDDER TO HAVE A SECURITY CLEARANCE BY BID OPENING COMPRISES THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. ALSO, YOU VIGOROUSLY OBJECT TO THAT WHICH IS IMPLICIT IN THE NAVY'S PRESENT POSITION THAT THE LOW BIDDER MIGHT NO LONGER BE PRECLUDED FROM CONSIDERATION FOR AWARD SINCE THE FIRM'S APPLICATION FOR A SECURITY CLEARANCE IS, AS THE NAVY REPORTS, "PRESENTLY BEING PROCESSED, AND A CLEARANCE IS EXPECTED SHORTLY."

WE MUST OBSERVE THAT, IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 1- 703(B)(5) OF THE ARMED SERVICES PROCUREMENT REGULATION, THE EARLIEST DATE THAT THE NAVY COULD HAVE AWARDED THE CONTRACT WOULD HAVE BEEN JUNE 29, 1971, THE DATE THAT PARKER-SPARKS WAS OFFICIALLY CLEARED "INTERIM SECRET." THAT PARAGRAPH PROVIDES, AS FOLLOWS:

(5) AWARD OF SET-ASIDE PROCUREMENTS. EXCEPT AS PROVIDED IN 3-508.1 OR WHEN THE CONTRACTING OFFICER DETERMINES IN WRITING THAT AWARD MUST BE MADE WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST, AWARD WILL NOT BE MADE PRIOR TO (I) FIVE WORKING DAYS AFTER THE BID OPENING DATE FOR PROCUREMENTS PLACED THROUGH SMALL BUSINESS RESTRICTED ADVERTISING, OR (II) THE DEADLINE DATE FOR SUBMITTING A PROTEST SET FORTH IN THE NOTIFICATION TO THE APPARENTLY UNSUCCESSFUL OFFERORS) FOR SMALL BUSINESS SET-ASIDE PROCUREMENTS PLACED THROUGH CONVENTIONAL NEGOTIATION.

THE SPECIFIC REQUIREMENT OF THE IFB WITH WHICH YOU CONTEND THAT BOTH LOWER BIDDERS FAILED TO COMPLY BEFORE BID OPENING READS, AS FOLLOWS:

ONLY BIDS RECEIVED FROM CONTRACTORS HAVING ACTIVE FACILITIES SECURITY CLEARANCE OF CONFIDENTIAL OR HIGHER WILL BE CONSIDERED.

NOTHING IN THE QUOTED STATEMENT SPECIFICALLY REQUIRES THAT A BIDDER HAVE THE NECESSARY CLEARANCE ON THE DATE OF BID OPENING IN ORDER TO PERMIT CONSIDERATION OF HIS BID. MOREOVER, KEEPING THIS CONCLUSION IN MIND, IN VIEW OF THE FACT THAT AN AWARD COULD NOT HAVE BEEN MADE PRIOR TO JUNE 29, 1971, WE DOUBT IF THE NAVY COULD HAVE REFUSED TO AWARD A CONTRACT TO ANY BIDDER WHOSE CLEARANCE BECAME EFFECTIVE BETWEEN BID OPENING AND JUNE 29. THIS ALONE, IN OUR OPINION, WOULD HAVE COMPELLED THE NAVY TO CONSIDER THE BID OF PARKER-SPARKS FOR AWARD. THEREFORE, WE NEED NOT CONSIDER THE QUESTION WHETHER PARKER-SPARKS POSSESSED AN ACTIVE FACILITIES SECURITY CLEARANCE OF INTERIM SECRET ON THE DATE OF BID OPENING.

IN ANY EVENT, WE FEEL CONSTRAINED TO COMMENT FURTHER ON THE SECURITY CLEARANCE REQUIREMENTS OF THE IFB. THE EXPRESS PURPOSE OF PRESCRIBING THAT CONTRACTORS POSSESS THE DESIGNATED SECURITY CLEARANCES WAS TO PERMIT ACCESS BY THE CONTRACTOR'S EMPLOYEES TO THE CLASSIFIED AREAS WHERE THE WORK WAS TO BE PERFORMED. THEREFORE, IN VIEW OF THE FACT THAT THE IFB DID NOT NECESSARILY PRECLUDE CONSIDERATION OF A PROSPECTIVE CONTRACTOR, PRIOR TO PERFORMING WORK IN CLASSIFIED AREAS, WHO DID NOT HOLD A REQUISITE CLEARANCE AT BID OPENING, WE FIND THAT SUCH A REQUIREMENT CONSTITUTED AN ASPECT OF THE BIDDER'S RESPONSIBILITY. SEE B-161211, JULY 11, 1967, AND CASES CITED THEREIN; AND B-167536, OCTOBER 17, 1969. IN THIS REGARD, WE QUOTE FROM B 161211, SUPRA, WHICH DISCUSSES THE LEGAL RAMIFICATIONS WHERE, AS HERE, A SECURITY CLEARANCE REQUIREMENT CONSTITUTES A MATTER OF RESPONSIBILITY:

IT IS OUR VIEW THAT THE QUOTED PROVISION REQUIRED THAT THE CONTRACTOR, NOT THE BIDDER, POSSESS A FACILITY CLEARANCE PRIOR TO PERFORMING WORK IN SPECIFIED AREAS AND CONSTITUTED A REQUIREMENT REGARDING THE BIDDER'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. SUCH A REQUIREMENT WAS NOT A CONDITION PRECEDENT TO SUBMISSION OF A BID, AND PROOF OR EVIDENCE OF SUCH QUALIFICATION COULD BE FURNISHED AT ANY TIME PRIOR TO PERFORMANCE OF WORK UNDER THE CONTRACT. WE HAVE HELD WITH RESPECT TO RESPONSIBILITY THAT THE CRITICAL TIME IS THE TIME FOR PERFORMANCE, PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. SINCE THE INVITATION REQUIREMENT COULD BE MET AT ANY TIME PRIOR TO PERFORMANCE, THE PROVISION READILY CAN BE INTERPRETED TO HAVE REQUIRED THAT THE EVIDENCE OF CLEARANCE BE PROVIDED AT SOME TIME AFTER THE BIDS WERE OPENED. THE AVAILABILITY OF EVIDENCE OF SECURITY CLEARANCE, THEREFORE, DID NOT AFFECT THE RESPONSIVENESS OF THE BID WHICH HAD TO BE DECIDED ON THE BASIS OF INFORMATION SUBMITTED PRIOR TO OR AT BID OPENING. COMPARE B-142350, MARCH 30, 1960, 39 COMP. GEN. 655 AND 38 COMP. GEN. 423. UNDER THIS VIEW, THE FACT THAT THE SUCCESSFUL BIDDER DID NOT HAVE PERTINENT SECURITY CLEARANCES AT THE TIME OF OPENING OF BIDS OR EVEN AT THE TIME OF AWARD DOES NOT FURNISH A VALID LEGAL BASIS FOR DISTURBING THE AWARD OF THE CONTRACT. SEE 43 COMP. GEN. 77; B-160085 DATED OCTOBER 18, 1966, 46 COMP. GEN. 326.

CONTINUING IN THIS VIEW, EVEN IF WE HAD CONSTRUED THE IFB TO REQUIRE AN ADEQUATE SECURITY CLEARANCE AS OF THE DATE OF BID OPENING, SUCH A CONSTRUCTION WOULD NOT ALTER OUR CONCLUSION. THE MERE METHOD OF STATING A PARTICULAR REQUIREMENT BY ATTEMPTING TO COMPEL COMPLIANCE BY BID OPENING DOES NOT CHANGE THE ESSENCE OF THE PURPOSE FOR WHICH THE INFORMATION IS REQUIRED, AND IF IT IS REQUIRED TO DETERMINE RESPONSIBILITY, IT CANNOT BE MADE A MATTER OF RESPONSIVENESS OR, AS YOU ARGUE, ELIGIBILITY. SEE 45 COMP. GEN. 4, 7 (1965); AND B-165799, MARCH 25, 1969; AND SEE B-160538, NOVEMBER 15, 1967. FURTHER, INVITATION REQUIREMENTS WHICH FIX THE TIME OF COMPLIANCE AS THE DATE OF BID OPENING NORMALLY RELATE TO THE TIMELY PROCUREMENT OF THE REQUESTED SERVICES AND ARE MATTERS OF PROCUREMENT RESPONSIBILITY AND CONVENIENCE. HAD THE CONTRACTING OFFICER DETERMINED THAT PERFORMANCE COULD NOT BE DELAYED PENDING DCAS CONSIDERATION AND RESOLUTION OF THE PARKER-SPARKS CLEARANCE REQUEST, WE WOULD BE IN NO POSITION TO OBJECT. ON THE OTHER HAND, THE NAVY'S TIME REQUIREMENTS OBVIOUSLY DID NOT REQUIRE SUCH ACTION, RENDERING CONSIDERATION, AT THAT TIME, OF THE PARKER-SPARKS BID PERMISSIBLE. SEE 47 COMP. GEN. 539, 543 (1968), WHEREIN WE RULED ON THE NECESSITY OF HOLDING A VALID LICENSE TO PERFORM THE REQUIRED WORK AT BID OPENING.

YOU STATE THAT THE NAVY'S POSSIBLE CONSIDERATION OF THE BID OF JOSEPH S. FLOYD CORPORATION WOULD MAKE A MOCKERY OF THE COMPETITIVE BIDDING SYSTEM, SINCE THAT FIRM DID NOT POSSESS ANY SECURITY CLEARANCE AT EITHER THE TIME OF BID OPENING, OR AT THE TIME PERFORMANCE WAS CONTEMPLATED TO HAVE BEGUN, BUT FOR YOUR PROTEST. AS STATED ABOVE, THE TIME FOR SUBMISSION OF EVIDENCE OF A BIDDER'S RESPONSIBILITY IS GOVERNED BY THE TIME WHEN PERFORMANCE IS REQUIRED. IN THIS CASE, IN VIEW OF THE PREAWARD POSTURE OF YOUR PROTEST, CONTRACT PERFORMANCE, OF COURSE, IS NOT REQUIRED AS OF THIS DATE. THEREFORE, WE WOULD HAVE NO OBJECTION TO THE NAVY'S CONSIDERATION OF THAT BID IF THAT FIRM WILL HAVE THE NECESSARY CLEARANCE PRIOR TO THE TIME FOR CONTRACT PERFORMANCE. SEE B-160538, B-160540, MARCH 24, 1967.

IN CONCLUSION, YOU ALLEGE THAT ANY WAIVER OR RELAXATION OF THE REQUIREMENTS FOR CLEARANCE BY BID OPENING OPERATES TO THE DETRIMENT OF ANY BIDDERS MISLED THEREBY INTO NOT SUBMITTING BIDS UNLESS THEY POSSESSED THE REQUISITE CLEARANCE. HOWEVER, SINCE AT LEAST THREE OF THE SIX BIDDERS DID NOT POSSESS SECURITY CLEARANCES AT BID OPENING, IT DOES NOT APPEAR THAT PROSPECTIVE CONTRACTORS WERE DISCOURAGED FROM BIDDING OR INTERPRETED THE SECURITY CLEARANCE PROVISION AS REQUIRED CLEARANCE AT BID OPENING. BUT EVEN IF SOME BIDDERS WERE DISCOURAGED FROM BIDDING, SUCH A SITUATION WOULD NOT OPERATE TO DILUTE THE RESPONSIBILITY CHARACTERISTICS OF THE SECURITY CLEARANCE REQUIREMENTS OF THE IFB. FURTHER, ADEQUATE COMPETITION WAS OBTAINED, AS EVIDENCED BY THE SUBMISSION OF SIX BIDS IN RESPONSE TO THE IFB. SEE B-161211, SUPRA. ..END :