B-204259, AUG 20, 1981
Highlights
WHEN SUCH FAILURES ARE MINOR INFORMALITIES WHICH DO NOT AFFECT BID'S RESPONSIVENESS. SHIPCO CONTENDS THAT BEST WAY'S BID IS NONRESPONSIVE BECAUSE BEST WAY FAILED TO COMPLETE THE IFB'S SMALL BUSINESS SIZE STATUS CERTIFICATION AS WELL AS OTHER UNSECIFIED CERTIFICATIONS AND REPRESENTATIONS. SINCE IT IS CLEAR FROM SHIPCO'S SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT. WE ARE DECIDING THE MATTER WITHOUT REQUESTING A REPORT FROM THE AIR FORCE. A BIDDING ERROR CONTEMPLATED BY THE REGULATION IS ONE THAT HAS NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE. A BIDDER'S FAILURE TO MAKE A REPRESENTATION CONCERNING ITS SIZE STATUS IS CITED IN THE REGULATION AS A SPECIFIC EXAMPLE OF A BID IRREGULARITY WHICH MAY BE WAIVED OR CORRECTED.
B-204259, AUG 20, 1981
DIGEST: CONTRACTING OFFICER MAY WAIVE OR ALLOW BIDDER TO CORRECT FAILURE TO COMPLETE SIZE STATUS AND CERTAIN OTHER CERTIFICATIONS IN BID, WHEN SUCH FAILURES ARE MINOR INFORMALITIES WHICH DO NOT AFFECT BID'S RESPONSIVENESS.
SHIPCO GENERAL, INC.:
SHIPCO GENERAL, INC., THE SECOND LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F10603-81-B-0012, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED BY THE DEPARTMENT OF THE AIR FORCE, PROTESTS THE PROPOSED AWARD OF A CONTRACT TO BEST WAY CONSTRUCTION, THE LOW BIDDER. SHIPCO CONTENDS THAT BEST WAY'S BID IS NONRESPONSIVE BECAUSE BEST WAY FAILED TO COMPLETE THE IFB'S SMALL BUSINESS SIZE STATUS CERTIFICATION AS WELL AS OTHER UNSECIFIED CERTIFICATIONS AND REPRESENTATIONS.
SINCE IT IS CLEAR FROM SHIPCO'S SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT, WE ARE DECIDING THE MATTER WITHOUT REQUESTING A REPORT FROM THE AIR FORCE. SEE ASSOCIATED BUILDERS AND CONTRACTORS, INC., B-194581, MAY 7, 1979, 79-1 CPD 314.
DEFENSE ACQUISITION REGULATION (DAR) SEC. 2-405 (1976 ED.) PERMITS A CONTRACTING OFFICER TO WAIVE OR ALLOW A BIDDER TO CORRECT AFTER BID OPENING A MINOR INFORMALITY OR IRREGULARITY IN THE BID. A BIDDING ERROR CONTEMPLATED BY THE REGULATION IS ONE THAT HAS NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY, AND THUS DOES NOT AFFECT THE BID'S RESPONSIVENESS. A BIDDER'S FAILURE TO MAKE A REPRESENTATION CONCERNING ITS SIZE STATUS IS CITED IN THE REGULATION AS A SPECIFIC EXAMPLE OF A BID IRREGULARITY WHICH MAY BE WAIVED OR CORRECTED. DAR SEC. 2-405(II). THEREFORE, BEST WAY'S BID NEED NOT BE REJECTED BY THE AIR FORCE FOR BEST WAY'S FAILURE TO CERTIFY THAT THE FIRM IS A SMALL BUSINESS. ANDERSON COTTONWOOD DISPOSAL, 58 COMP.GEN. 713 (1979), 79-2 CPD 98.
SINCE THE SMALL BUSINESS CERTIFICATION REQUIREMENT APPEARS ON THE SECOND PAGE OF STANDARD FORM 33, SOLICITATION, OFFER AND AWARD, WE ASSUME THAT THE UNIDENTIFIED REPRESENTATIONS WHICH BEST WAY ALSO ALLEGEDLY FAILED TO COMPLETE ARE OTHER MATTERS ON THAT PAGE. WE HAVE HELD, HOWEVER, THAT THE COMPLETION OF THOSE REPRESENTATIONS AND CERTIFICATIONS IS NOT REQUIRED TO DETERMINE WHETHER A BID MEETS SPECIFICATIONS OR OTHER SOLICITATION PROVISIONS, AND THEREFORE DOES NOT AFFECT BID RESPONSIVENESS, WITH THE RESULT THAT THE FAILURE TO COMPLETE THEM MAY BE WAIVED OR CURED AFTER BID OPENING. BRYAN L. AND F. B. STANDLEY, B-186573, JULY 20, 1976, 76-2 CPD 60, AND DECISIONS CITED THEREIN.
THE PROTEST IS SUMMARILY DENIED.