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.