B-173909, OCT 8, 1971

B-173909, OCT 8, 1971

BID PROTEST - NONRESPONSIVE BID - CERTIFICATE OF ELIGIBILITY DENIAL OF PROTEST AGAINST THE AWARD TO ASC SYSTEMS CORP. OF THE SET ASIDE PORTION OF THE PROCUREMENT, UNDER AN IFB ISSUED BY THE NAVAL ELECTRONICS SYSTEMS COMMAND, OF 857 AS-177( )/UPX ANTENNA ASSEMBLIES. REQUIREMENTS FOR AND LIMITATIONS ON ELIGIBILITY FOR AWARD OF THE SET ASIDE WHICH ARE STATED IN THE INVITATION CONTROL THIS ASPECT OF THE PROCUREMENT. SINCE PROTESTANT DID NOT SUBMIT THE CERTIFICATE OF ELIGIBILITY AS REQUIRED, THE DETERMINATION OF NONRESPONSIVENESS WAS PROPER.

TO R. A. MILLER INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 12, 1971, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, TO CONGRESSMAN GUY VANDER JAGT, PROTESTING THE AWARD TO ASC SYSTEMS CORPORATION OF THE SET-ASIDE PORTION OF THE PROCUREMENT UNDER INVITATION FOR BIDS (IFB) NO. N00039 71-B-0234, ISSUED BY THE NAVAL ELECTRONICS SYSTEMS COMMAND, WASHINGTON, D.C.

THE ABOVE-REFERENCED INVITATION WAS ISSUED ON APRIL 19, 1971, FOR THE SUPPLY OF 857 AS-177( )/UPX ANTENNA ASSEMBLIES, TOGETHER WITH ANCILLARY DOCUMENTATION AND AN OPTION FOR STEP-LADDER QUANTITIES OF THE PRINCIPAL ITEM OF SUPPLY. FIFTY PERCENT OF THE REQUIREMENT WAS SET ASIDE FOR LABOR SURPLUS AREA CONCERNS, EACH OF WHICH WAS REQUIRED UNDER SECTION C, PARAGRAPH (15) OF THE IFB ("LABOR SURPLUS CERTIFICATION (E-70 JUN)") TO INDICATE WHICH OF THE FOLLOWING GROUPS WAS APPLICABLE TO IT:

GROUP 1. CERTIFIED-ELIGIBLE CONCERN WITH A FIRST PREFERENCE WHICH IS ALSO A SMALL BUSINESS CONCERN.

GROUP 2. OTHER CERTIFIED-ELIGIBLE CONCERN WITH A FIRST PREFERENCE.

GROUP 3. CERTIFIED-ELIGIBLE CONCERN WITH A SECOND PREFERENCE WHICH IS ALSO A SMALL BUSINESS CONCERN.

GROUP 4. OTHER CERTIFIED-ELIGIBLE CONCERN WITH A SECOND PREFERENCE.

GROUP 5. PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA CONCERN WHICH IS ALSO A SMALL BUSINESS CONCERN.

GROUP 6. OTHER PERSISTENT OR SUBSTANTIAL LABOR SURPLUS AREA CONCERN.

GROUP 7. SMALL BUSINESS CONCERN WHICH IS NOT A LABOR SURPLUS AREA CONCERN.

THIS PROVISION FURTHER ADVISED BIDDERS:

"IF OFFEROR OR HIS FIRST TIER SUBCONTRACTORS) IS A CERTIFIED-ELIGIBLE CONCERN CERTIFIED BY THE SECRETARY OF LABOR *** HE SHALL SUBMIT WITH HIS OFFER EVIDENCE OF SUCH CERTIFICATION."

SECTION C, PARAGRAPH (16) OF THE IFB CONTAINED THE CLAUSE "NOTICE OF LABOR SURPLUS AREA SET-ASIDE (1970 JUN)" (ASPR 1-804.2(B)(1)), WHICH SET FORTH PROCEDURES FOR THE NEGOTIATION OF THE SET-ASIDE PORTION OF THE PROCUREMENT, WITH PRIORITY FOR SUCH NEGOTIATIONS DESCENDING THROUGH THE 7 GROUPS IN THE ORDER IN WHICH THEY ARE ENUMERATED ABOVE. PARAGRAPH (4)(D) OF THIS CLAUSE INSTRUCTED EACH BIDDER WHO WISHED TO BE CONSIDERED A CERTIFIED-ELIGIBLE CONCERN TO "FURNISH WITH HIS BID EVIDENCE OF ITS CERTIFICATION OR ITS FIRST TIER SUBCONTRACTORS' CERTIFICATION BY THE SECRETARY OF LABOR."

AT THE BID OPENING HELD ON JUNE 2, 1971, BIDS WERE RECEIVED FROM 17 FIRMS, THE THREE LOWEST OF WHICH WERE AS FOLLOWS:

ITEM 1 ITEM 2 ITEM 3 ITEM 4

UNIT PRICE UNIT PRICE UNIT PRICE UNIT PRICE

LAPOINTE INDUSTRIES, INC. $83.25 - - -

R. A. MILLER ELECTRONICS CORP. $87.00 $429.00 N.C. N.C.

ASC SYSTEMS CORP. $88.10 NSP NSP NSP

ASC SYSTEMS CORPORATION SUBMITTED WITH ITS BID A CERTIFICATE OF ELIGIBILITY DATED JANUARY 27, 1971, FOR GROUP 2. YOUR FIRM INDICATED IN SECTION C, PARAGRAPH (15) OF THE IFB THAT IT WAS CERTIFIED ELIGIBLE WITHIN GROUP 1. HOWEVER, YOU FAILED TO SUBMIT EVIDENCE OF SUCH CERTIFICATION WITH YOUR BID. THE PROCURING ACTIVITY THEREFORE CONSIDERED YOUR BID TO BE NONRESPONSIVE TO THE SET-ASIDE PORTION OF THE PROCUREMENT AND YOU WERE NOT CONSIDERED FOR AWARD THEREOF. AWARD WAS MADE ON JUNE 29, 1971, TO LAPOINTE INDUSTRIES, INC., FOR THE NON-SET ASIDE PORTION AND ON JULY 30, 1971, TO ASC SYSTEMS CORPORATION FOR THE SET-ASIDE PORTION OF THE PROCUREMENT.

ON JULY 22, 1971, SUBSEQUENT TO BID OPENING BUT BEFORE AWARD OF THE SET- ASIDE PORTION, YOU SUBMITTED A CERTIFICATE OF ELIGIBILITY, DATED JULY 1, 1971, FOR GROUP 1. YOU CONTEND THAT ALTHOUGH YOUR CERTIFICATE OF ELIGIBILITY DID NOT ACCOMPANY YOUR BID, IT WAS SUBMITTED IN SUFFICIENT TIME BEFORE AWARD TO HAVE OBLIGATED THE PROCURING ACTIVITY TO NEGOTIATE WITH YOU AS A CERTIFIED-ELIGIBLE CONCERN UNDER GROUP 1.

IN 41 COMP. GEN. 417 (1961) WE STATED THAT EVEN THOUGH A LABOR SURPLUS SET-ASIDE IS A NEGOTIATED PROCUREMENT, REQUIREMENTS FOR AND LIMITATIONS ON ELIGIBILITY FOR AWARD OF THE SET-ASIDE WHICH ARE STATED IN THE INVITATION MUST CONTROL THIS ASPECT OF THE PROCUREMENT. SECTION C, PARAGRAPHS (15) AND (16) OF THE INSTANT IFB CLEARLY ADVISED THOSE BIDDERS WISHING TO BE CONSIDERED UNDER THE HIGHER CERTIFIED ELIGIBLE CATEGORY TO SUBMIT WITH THEIR OFFERS EVIDENCE OF SUCH CERTIFICATION. THIS WAS NOT TIMELY COMPLIED WITH BY YOU.

AN ANALOGOUS SITUATION WAS CONSIDERED IN 47 COMP. GEN. 543 (1968), WHERE WE HELD:

" *** SINCE BIDDERS WERE WARNED THAT THEIR ELIGIBILITY FOR CONSIDERATION AS A CERTIFIED-ELIGIBLE CONCERN, FOR THE PURPOSE OF PRIORITY IN THE NEGOTIATION OF THE SET-ASIDE PORTIONS, WAS PREDICATED UPON THE SUBMISSION OF A PROPER CERTIFICATION WITH THEIR BIDS, OUR OFFICE WOULD NOT BE WARRANTED IN DISAGREEING WITH A DETERMINATION TO CONSIDER A BIDDER WHICH DID NOT SUBMIT THE REQUIRED CERTIFICATE AS ONE WHICH HAS NOT BEEN QUALIFIED AS A 'CERTIFIED-ELIGIBLE' CONCERN.

"IN VIEW THEREOF, IT IS OUR OPINION THAT THE REQUIREMENT IN THE INVITATIONS AND THE RFP RESPECTING THE SUBMISSION OF EVIDENCE OF CERTIFICATION AS A 'CERTIFIED-ELIGIBLE CONCERN' IS ONE OF RESPONSIVENESS AS TO WHICH THE CRITICAL TIME IS BID OPENING OR THE DATE FIXED FOR RECEIPT OF PROPOSALS."

SEE ALSO B-168259(2), MARCH 31, 1970; B-164115, AUGUST 30, 1968.

IN VIEW OF THE ABOVE, WE ARE AWARE OF NO BASIS UPON WHICH WE COULD PROPERLY DISAGREE WITH THE CONTRACTING AGENCY'S CONCLUSION THAT YOUR FIRM CANNOT BE CONSIDERED A "CERTIFIED-ELIGIBLE" CONCERN FOR THE INSTANT PROCUREMENT.

ACCORDINGLY, YOUR PROTEST IS DENIED.