BNUMBER: B-280448
DATE: September 30, 1998
TITLE: Riverwood of Mississippi, Inc., B-280448, September 30, 1998
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Matter of:Riverwood of Mississippi, Inc.
File:B-280448
Date:September 30, 1998
Robert S. Murphree, Esq., for the protester.
Laurie Ristino, Esq., Forest Service, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that bid for timber sale should have been rejected as
nonresponsive for failure to include Certificate of Small Business
Status, which contained performance requirements, is denied where bid
form obligated bidder to meet identical performance requirements.
DECISION
Riverwood of Mississippi, Inc. protests the award of a contract to
Rex, Inc. under an advertisement for a "Compartment 2 Timber Sale,"
issued by the Forest Service, Department of Agriculture, as a small
business set-aside for timber located in the Delta National Forest.
Riverwood asserts that the award to Rex was improper because its bid
did not include a completed Certificate of Small Business Status.
We deny the protest.
The bid instructions provided that bidders had to complete, and submit
with their bids, a Certificate of Small Business Status in order to be
eligible for award as a small business. The certificate contained the
definition of a small business for purposes of the sale, as well as
performance requirements regarding the resale and use of the timber.
Rex's high bid was accepted for award despite its failure to include
the certificate. Riverwood maintains that Rex's bid instead should
have been rejected as nonresponsive, and award made to Riverwood as
the only eligible small business bidder.
Responsiveness concerns whether a bid constitutes an offer to perform,
without exception, the exact thing called for in the solicitation.
Unless something on the face of the bid reduces or modifies the
bidder's obligation to perform in accordance with the terms of the
solicitation, the bid is responsive. The required commitment to the
terms of the solicitation need not be made in the exact manner
specified; all that is necessary is that the bid, in some fashion,
commit the bidder to the solicitation's material requirements.
Cal-Tex Lumber Co., Inc., B-277705, Sept. 24, 1997, 97-2 CPD para. 87 at
3. In this regard, we have recognized that where signing a bid form
binds the bidder to all material terms of a required small business
status 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, in such circumstances, the absence
of an executed certificate does not render the bid nonresponsive or
otherwise provide a basis for rejecting it.[1] Id.
By signing its bid, Rex specifically bound itself to the terms of the
sample contract referenced in the bid form. Bid Form at 3. That
contract, at clause CT6.9, contains performance requirements identical
to those set forth in the certificate. Accordingly, the requirement
for submitting the certificate with the bid was redundant, and Rex's
failure to submit an executed certificate was of no legal
consequence.[2] Cal-Tex Lumber Co., Inc., supra, at 3.
Riverwood maintains that the sample contract terms are not a
substitute for the certificate here since, according to the timber
sale prospectus, clause CT6.9 will be included in the sample contract
only if the bidder on this sale certifies as a small business by
signing the certificate. Prospectus at 9. Riverwood reasons that,
since Rex did not sign the certificate, it did not agree to clause
CT6.9. We disagree. The prospectus is a document that provides
potential bidders who choose to obtain it with more information and
details regarding the timber sale than the advertisement announcing
the timber sale provides. Its purpose is to allow potential bidders
to make an informed decision as to whether to participate in the
timber sale. The prospectus is not a part of the contract, however,
and does not purport to set forth contract terms. In fact, the
prospectus specifically provides that when it contradicts the
contract, the contract governs. Prospectus at 2. In contrast, the
bid form expressly binds the bidder to the terms of the bid form and
the sample contract as material parts of its offer. Bid Form at 3.
This being the case, and as neither the bid form nor the sample
contract provides any circumstances under which clause CT6.9 will be
removed from the sample contract, Rex is bound by the performance
requirements contained in the sample contract. It follows that the
agency properly accepted Rex's bid.
The protest is denied.
Comptroller General
of the United States
1. Small business status itself may be established after bid opening,
Jimmy's Appliance, B-205611, June 7, 1982, 82-1 CPD para. 542 at 4; thus,
the only question here is the effect of the absence of the certificate
on the performance requirements.
2. In supplemental comments Riverwood submitted in response to the
agency report, Riverwood asserts that it learned that Rex will not
comply with the applicable performance requirements. Whether Rex
complies with the performance requirements is a matter of contract
administration, which is not subject to review by our Office. 4
C.F.R. sec. 21.5(a) (1998).