BNUMBER: B-277705
DATE: September 24, 1997
TITLE: Cal-Tex Lumber Company, Inc., B-277705, September 24, 1997
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Matter of:Cal-Tex Lumber Company, Inc.
File: B-277705
Date: September 24, 1997
Leon E. Ray for the protester.
Laurie Ristino, Esq., Department of Agriculture, for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that bid was improperly rejected as nonresponsive because
bidder failed to include with its bid a certificate of small business
status which contained certain performance requirements is sustained
where the bid form executed by the protester obligated it to meet the
identical performance requirements.
DECISION
Cal-Tex Lumber Company, Inc. protests the rejection of its high bid
submitted in response to an advertisement for the "Compartment 32
Backyard Timber Sale" issued by the Forest Service, Department of
Agriculture (USDA) for the sale of timber located in the Sabine
National Forest in Texas. Cal-Tex maintains that the agency erred in
rejecting its bid as nonresponsive because it did not include an
executed Certificate of Small Business Status.
We sustain the protest.
The Addendum To Bid For Advertised Timber used for this sale provided
as follows:
This is a small business set-aside sale. Bids from others will
be considered if no valid bid is received from a small business
concern. The CERTIFICATE OF SMALL BUSINESS STATUS at the end of
this page must be completed and submitted with the Bid For
Advertised Timber in order for small business concerns to receive
preferential consideration for sale award.
The Certificate of Small Business Status contained a definition of
small business status which included certain performance requirements
for the purposes of the sale in question, as follows:
(a) In sales of National Forest timber, a small business is a
concern that (1) is primarily engaged in the logging or forest
products industry; (2) is independently owned and operated; (3)
is not dominant in its field of operation; and (4) together with
its affiliates does not employ more than 500 persons.
(b) In sales of National Forest timber with any part to be
resold, a small business is a concern that (1) meets the
requirements of Item (a) above; and (2) agrees to deliver 100% of
the Southern Yellow Pine sawtimber from this sale to small
business processing facilities; and (3) agrees that it may
deliver other sawtimber species from this sale to large business
processing facilities subject to a maximum limitation equal to
30% of the total advertised sawtimber volume for all
species listed in the contract.
(c) In sales of National Forest timber not to be resold for
manufacture into lumber and timbers, a concern is a small
business when (1) it meets the requirements of Item (a) above;
and (2) agrees that in manufacturing lumber or timbers from
National Forest timber, it will do so only with its own
facilities or those of concerns that qualify as a small business.
Four bids were submitted before bid opening at 1 p.m. on July 23,
1997, as follows:
Bidder Price
Cal-Tex $559,276.84
Mims Lumber Company, Inc. $550,573.91
Nix Forest Industries, Inc.$528,067.98
G.D. Edgar Lumber Company, Inc.$525,687.18
Neither Cal-Tex nor Mims submitted an executed Certificate of Small
Business Status with its bid (both later submitted executed
certificates). By letter dated July 28, the contracting officer
rejected the bids of Cal-Tex and Mims as nonresponsive for failure to
include the requisite certificates on the theory that the firms were
not bound to the performance requirements quoted above. The letter
also announced an intention to award a contract to Nix Forest if no
protest was filed with this Office within 10 days. This protest was
filed on August 6.
In its protest, Cal-Tex, a small business whose size is not in
dispute, maintains that it has committed to delivering the timber to
itself (thus ensuring that the timber is delivered to a small
business). The agency asserts that there is support for the
contracting officer's position that the rejected bids are
nonresponsive, but also recognizes that the contracting officer's
analysis is subject to question because the identical performance
requirements are also included in clause CT6.9 of a sample timber
sales contract to which, under the terms of the bid form used for this
sale, a bidder explicitly binds itself by signing its bid.
Responsiveness concerns whether a bid constitutes an offer to perform,
without exception, the exact thing called for in the invitation.
Unless something on the face of the bid, or specifically a part of it,
limits, reduces or modifies the bidder's obligation to perform in
accordance with the terms of the solicitation, the bid is
responsive.[1] The required commitment to the terms of the invitation
need not be made in the exact manner specified by the solicitation;
all that is necessary is that the bidder, in some fashion, commit
itself to the solicitation's material requirements. Challenger
Piping, Inc., 65 Comp. Gen. 505, 507 (1986), 86-1 CPD para. 385 at 4. In
this regard, we have recognized that where signing a bid form binds
the bidder to all material terms of a required certification, a
requirement for a separate commitment to the same terms in the form of
an executed certificate is redundant and of no legal consequence;
therefore, failure to execute such a certificate does not constitute a
valid basis to reject a bid. A. A. Beiro Constr. Co., Inc., B-192664,
Dec. 20, 1978, 78-2 CPD para. 425 at 4-5.
Here, as the agency recognizes, the terms of the bid document operate
to bind Cal-Tex to the terms of the sample contract by signing its
bid, and the sample contract contains the identical performance
requirements as those set forth in the Certificate of Small Business
Status. Accordingly, the requirement for submitting the certificate
with a bid is redundant and of no legal consequence. Id. Thus, the
agency should have accepted Cal-Tex's bid; since it did not, we
sustain the protest.
We recommend that the agency reinstate the Cal-Tex bid and make award
to Cal-Tex if otherwise appropriate. We also recommend that the
protester be reimbursed its costs of filing and pursuing the protest.
4 C.F.R. sec. 21.8(d)(1) (1997). The protester should submit its
certified claim for such costs, detailing the time expended and the
costs incurred, directly to the contracting agency within 60 days of
receiving this decision. 4 C.F.R. sec. 21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. The failure of a bidder under a small business set-aside to provide
a properly executed certification of small business status with its
bid is normally waivable and the appropriate representation may be
made after bid opening because it pertains only to the bidder's status
and eligibility for award, not to the firm's commitment to provide the
required service. Jimmy's Appliance, 61 Comp. Gen. 444, 445-446
(1982), 82-1 CPD para. 542 at 3-4. Thus, the only question here is the
effect of the performance requirements included under sections (b) and
(c) of the certificate at issue.