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B-186823, OCTOBER 18, 1976

B-186823 Oct 18, 1976
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ALLEGATION THAT LOW BIDDER IS AFFILIATED WITH DEBARRED FIRM AND INELIGIBLE FOR AWARD IS NOT FOR CONSIDERATION BY GAO SINCE SERVICE CONTRACT ACT PROVIDES THAT FEDERAL AGENCY HEAD AND SECRETARY OF LABOR ARE TO ENFORCE ACT AND SUCH POWER INCLUDES MAKING DETERMINATIONS OF AFFILIATION. CONTENTION THAT LOW BIDDER DID NOT COMPLY WITH SOLICITATION AMENDMENTS AND DID NOT PRICE ALL ITEMS ON BID SCHEDULE IS WITHOUT MERIT AS REVIEW OF BID SHOWS BIDDER PRICED ALL ITEMS AND ACKNOWLEDGED ALL AMENDMENTS. N62467-76-C-4021 WAS ISSUED BY THE NAVAL WEAPONS STATION. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE IFB. THE LOW BID WAS SUBMITTED BY WILLIAM MURTEY. THE NEXT LOW BID WAS FROM DYNETERIA. THE NAVY DETERMINED THAT A PROMPT AWARD WAS NECESSARY TO CONTINUE PROPER MAINTENANCE OF THE HOUSING AND.

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B-186823, OCTOBER 18, 1976

1. ALLEGATION THAT LOW BIDDER IS AFFILIATED WITH DEBARRED FIRM AND INELIGIBLE FOR AWARD IS NOT FOR CONSIDERATION BY GAO SINCE SERVICE CONTRACT ACT PROVIDES THAT FEDERAL AGENCY HEAD AND SECRETARY OF LABOR ARE TO ENFORCE ACT AND SUCH POWER INCLUDES MAKING DETERMINATIONS OF AFFILIATION. MOREOVER, CONTRACTING OFFICER FOUND BIDDER RESPONSIBLE AND SUCH DETERMINATION INCLUDED CONSIDERATION OF QUESTION PRESENTED BY PROTEST. 2. FAILURE TO ENTER EMPLOYER IDENTIFICATION NUMBER IN BID DOES NOT RENDER BID NONRESPONSIVE. 3. CONTENTION THAT LOW BIDDER DID NOT COMPLY WITH SOLICITATION AMENDMENTS AND DID NOT PRICE ALL ITEMS ON BID SCHEDULE IS WITHOUT MERIT AS REVIEW OF BID SHOWS BIDDER PRICED ALL ITEMS AND ACKNOWLEDGED ALL AMENDMENTS.

DYNETERIA, INC.:

ON MAY 25, 1976, INVITATION FOR BIDS (IFB) NO. N62467-76-C-4021 WAS ISSUED BY THE NAVAL WEAPONS STATION, CHARLESTON, SOUTH CAROLINA, FOR HOUSING MAINTENANCE AT THE STATION.

FOUR BIDS WERE RECEIVED IN RESPONSE TO THE IFB. THE LOW BID WAS SUBMITTED BY WILLIAM MURTEY, DOING BUSINESS AS B&M INDUSTRIES, AND THE NEXT LOW BID WAS FROM DYNETERIA, INC. (DYNETERIA).

ON JUNE 25, 1976, DYNETERIA PROTESTED TO OUR OFFICE CONSIDERATION OF MURTEY'S BID. THE NAVY DETERMINED THAT A PROMPT AWARD WAS NECESSARY TO CONTINUE PROPER MAINTENANCE OF THE HOUSING AND, THEREFORE, AWARD WAS MADE TO MURTEY ON JULY 1, 1976, NOTWITHSTANDING THE PENDENCY OF THE PROTEST. THIS ACTION WAS PURSUANT TO SECTIONS 2-407.8(B)(3)(I) AND (III) (1975 ED.) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

DYNETERIA'S PROTEST IS BASED ON THE ALLEGATION THAT MURTEY IS AN EMPLOYEE OF LIBERTY MAINTENANCE (LIBERTY), A FIRM WHICH IS CURRENTLY ON THE DEBARRED BIDDERS LIST AND INELIGIBLE FOR AWARD OF GOVERNMENT CONTRACTS, AND WAS MERELY BIDDING AS A FRONT FOR LIBERTY. DYNETERIA ALSO ALLEGES THAT MURTEY DID NOT PROPERLY COMPLETE ITS BID BY FAILING TO SUPPLY ITS EMPLOYER IDENTIFICATION NUMBER AND DID NOT INSERT A PRICE FOR ALL ITEMS.

WITH REGARD TO THE ALLEGATION OF AFFILIATION BETWEEN MURTEY AND LIBERTY, WE NOTE THAT IN MAKING THE AWARD TO MURTEY, THE CONTRACTING OFFICER MADE AN AFFIRMATIVE DETERMINATION OF MURTEY'S RESPONSIBILITY. SUCH DETERMINATION INCLUDED CONSIDERATION OF THE CHARGE BY DYNETERIA REGARDING AFFILIATION, AND IT WAS CONCLUDED THAT THERE WAS NO EVIDENCE SUPPORTING THE ALLEGATION. SEE ASPR SEC. 1-905.3(I) (1975 ED.). MOREOVER, THE SERVICE CONTRACT ACT OF 1965 (41 U.S.C. 351 ET SEQ. (1970)), UNDER WHICH LIBERTY WAS DEBARRED, PROVIDES THAT ENFORCEMENT OF THE ACT SHALL BE PERFORMED BY THE FEDERAL AGENCY HEAD AND THE SECRETARY OF LABOR AND SUCH ENFORCEMENT POWER INCLUDES DETERMINATIONS OF AFFILIATION.

AS TO THE FAILURE OF MURTEY TO PROVIDE ITS EMPLOYER IDENTIFICATION NUMBER IN THE PORTION OF THE BID ENTITLED "REPRESENTATIONS AND CERTIFICATIONS," SUCH OMISSION DOES NOT RENDER A BID NONRESPONSIVE. ASPR SEC. 1-114(B) (1975 ED.) STATES THAT " * * * FAILURE TO PROVIDE INFORMATION CONCERNING THE PARENT COMPANY OR THE EMPLOYER'S IDENTIFICATION NUMBER IS NOT A BASIS FOR THE REJECTION OF THE BIDS." SEE TENNESSEE VALLEY SERVICE, INC., B-186380, JUNE 25, 1976, 76-1 CPD 410.

FINALLY, DYNETERIA CONTENDS THAT MURTEY FAILED TO COMPLY WITH ALL THE AMENDMENTS TO THE SOLICITATION AND, IN PARTICULAR, LEFT PRICING REQUIRED BY THE SCHEDULE BLANK AND DID NOT COMPLY WITH THE AMENDMENTS IN CHANGING THE REQUIREMENTS OF THE BID SCHEDULE. AMENDMENT 0001 TO THE IFB INCLUDED, AMONG OTHER CHANGES, A NEW BID SCHEDULE. AMENDMENT 0002 ADVISED BIDDERS THAT THE QUANTITY OF ONE ITEM WAS MISSTATED IN THE NEW BID SCHEDULE AND SHOULD BE 1,900 INSTEAD OF 9,900. MURTEY IN ITS BID CORRECTED THE ABOVE QUANTITY AND ACKNOWLEDGED BOTH AMENDMENTS. DYNETERIA MADE THE SAME CHANGE IN ITS BID SCHEDULE. FURTHER, WE HAVE REVIEWED THE BID OF MURTEY AND A PRICE WAS QUOTED FOR EACH ITEM IN THE SCHEDULE. THEREFORE, WE FIND NOTHING IMPROPER IN THE DETERMINATION THAT MURTEY'S BID WAS RESPONSIVE.

ACCORDINGLY, THE PROTEST IS DENIED.

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