BNUMBER:  B-280267             
DATE:  July 17, 1998
TITLE: Carpenter's Pole & Piling, B-280267, July 17, 1998
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Matter of:Carpenter's Pole & Piling

File:B-280267            
        
Date:July 17, 1998

Preston Carpenter for the protester.  
Laurie Ristino, Esq., Department of Agriculture, for the agency. 
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest alleging that a bid on a timber sale should have been rejected 
because it did not contain required information certifying whether or 
not the bidder has participated in previous contracts subject to a 
provision of an executive order concerning nondiscrimination in 
employment by government contractors and whether or not the firm has 
submitted required compliance reports under those contracts, is denied 
where the information did not relate to the bidder's performance 
obligation and therefore could be furnished at any time prior to 
award.

DECISION

Carpenter's Pole & Piling protests the acceptability of a bid 
submitted by DeSoto Logging, Inc. for Compartment No. 58 Timber Sale, 
offered by the DeSoto Ranger District, in the DeSoto National Forest.  
The protester alleges that the Forest Service improperly allowed 
DeSoto Logging to furnish, after bid opening, required information 
concerning whether or not the firm has participated in previous 
contracts subject to a provision of an executive order concerning 
nondiscrimination in employment and whether or not the firm has 
submitted required compliance reports under those contracts.

We deny the protest.

The Forest Service received sealed bids from Carpenter's Pole & Piling 
and DeSoto Logging by the time set for bid opening on June 4, 1998.  
Upon review of the bids, the Forest Service found that DeSoto Logging, 
which had submitted the high bid, had failed to complete a portion of 
the bid under the heading "BIDDER INFORMATION REQUIREMENTS," which 
required bidders to certify whether or not they have participated in a 
previous contract subject to section 202 of Executive Order No. 
11,246, 3 C.F.R. 167, 168 (1965) (concerning nondiscrimination in 
employment by government contractors), and whether or not the firm has 
submitted required compliance reports under those previous contracts.  
The Forest Service nevertheless accepted DeSoto Logging's bid and 
allowed the firm to provide the required information prior to award, 
determining that the failure to submit the certification did not 
render the bid nonresponsive.

Generally, a bid on a timber sale with a material omission cannot be 
corrected after bid opening; such a bid is regarded as nonresponsive 
and must be rejected.  D.M. Wilson Lumber, Inc., B-239136, Apr. 12, 
1990, 90-1 CPD  para.  386 at 1, recon. denied,  B-239136.2, May 18, 1990, 
90-1 CPD  para.  489.  However, not all information requested with a bid 
involves responsiveness; the information may relate to bidder 
responsibility, that is, the bidder's ability to perform, or may be 
required for the agency's own internal use.   This type of information 
may be furnished after bid opening up to the time of award.  Id.

The information involved here--whether the firm has participated in 
previous contracts subject to section 202 of the Executive Order and 
whether it has submitted required compliance reports under those 
contracts--is not related to the bidder's performance obligation, but 
apparently is used by the Forest Service internally to monitor its 
sales programs.  Since the information does not involve the bidder's 
obligation to perform, DeSoto Logging's failure to furnish the 
information by bid opening did not render its bid nonresponsive, and 
the firm was not precluded from furnishing the certification after bid 
opening.  Id.

Nevertheless, the protester contends that the bid form's language, 
which indicated that bids that did not include this information would 
be rejected, made this requirement a matter of responsiveness.  A 
requirement, such as the one here, essentially concerning the 
submission of information unrelated to the material terms and 
conditions of the solicitation and, thus, unrelated to the bidder's 
performance obligation, cannot be converted into a matter of 
responsiveness merely by solicitation terms requiring the furnishing 
of the information with the bid.  Hurd Logging Co., B-245260, Dec. 13, 
1991, 91-2 CPD  para.  542 at 2.

The protest is denied.

Comptroller General
of the United States