B-227636, Jul 24, 1987, 87-2 CPD 87

B-227636, Jul 24, 1987, 87-2 CPD 87

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Small business set -aside - Compliance DIGEST: 1. Bid on a total small business set aside, indicating that not all end items to be furnished would be produced by small businesses, is nonresponsive because otherwise the bidder would be free to furnish supplies from a large business and therefore defeat the purpose of the set -aside. PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Determination time periods 2. The responsiveness of a bid may only be determined from the material which was available to the agency at bid opening.

Rocco Industries, Inc.:

Rocco Industries, Inc., protests the award of a contract to Durodyne Inc. under the Department of the Navy invitation for bids (IFB) No. N62578-87-B -7058 for potable water hose assemblies, following the rejection of Rocco's bid as nonresponsive.

We dismiss the protest without obtaining an agency report since it is clear from the record that the protest is without legal merit. See 4 C.F.R. Sec. 21.3(f) (1986).

Rocco's bid was rejected as nonresponsive due to the protester's certification in its bid that not all end items to be furnished would be manufactured or produced by a small business concern in the United States, its territories or possessions, Puerto Rico, or the Trust Territory of the Pacific Islands, as required by the provisions of the Federal Acquisition Regulation (FAR), 48 C.F.R. Sec. 52.219-1 (1985), contained in the IFB.

A responsive bid is one that, if accepted by the government as submitted, will obligate the contractor to perform the exact thing called for in the solicitation. See FAR, 48 C.F.R. Sec. 14.301(a) (1986); J.G.B. Enterprises, Inc., B-219317.2, July 31, 1985, 85-2 CPD Para. 109. The certification concerning a bidder's obligation to furnish products manufactured or produced by a small business concern is a matter of bid responsiveness because it involves a performance commitment by the bidder. J.G.B. Enterprises, Inc., B-219317.2, supra, 85-2 CPD Para. 109 at 1-2. Where a bid on a total small business set-aside fails to establish the bidder's legal obligation to furnish end items manufactured or produced by a small business concern, the bid is nonresponsive and must be rejected; otherwise, a small business contractor would be free to provide the end items from either small or large businesses as its own business interests might dictate, thus defeating the purpose of the set- aside program. See FAR, 48 C.F.R. Sec. 14.404-2; ATD-American Co., B-217290, Jan. 23, 1985, 85-1 CPD Para. 91.

Rocco indicates that it is a small business manufacturer and assembler of hose assemblies, and that it intended to purchase the hose component of the assembly from a large business. The reason for this purchase, Rocco explains, is that "the only other source for this hose for a small business was Durodyne," a competitor under this IFB. Rocco's protest suggests that it felt compelled to check the certification in its bid as it did because one "end item component" would be supplied by a large business and that this should be unobjectionable since "we are purchasing less than 50% from a large business." It is apparent that Rocco did not realize that the small business certification under FAR, 48 C.F.R. Sec. 52.219-1, refers to the end items to be furnished under the contract-- here, potable water hose assemblies-- and that it mistakenly certified that not all end items would be furnished by small business concerns because one component would be obtained from a large business. Regardless of this misunderstanding, however, the responsiveness of its bid may only be determined from the material which was available at bid opening and which, properly, led the Navy to reject this bid. Ginter Welding, Inc., B-218894, May 29, 1985, 85-1 CPD Para. 612.

The protest is dismissed.