______________________________________________ DENIED: October 5, 1993 _______________________________________________ GSBCA 12538-P(12369-P) INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, Derwood, MD, counsel for Protester. Craig R. Schmauder and William A. Richards, Office of the Chief Counsel, Corps of Engineers, Department of the Army, Washington, DC; and Richard W. Kommers and Richard P. White, Corps of Engineers, Department of the Army, Baltimore, MD, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and HENDLEY. PARKER, Board Judge. Integrated Systems Group, Inc. (ISG), protests the decision of the U.S. Army Corps of Engineers to reject as nonresponsive ISG's bid to supply personal computer workstations. For the reasons discussed below, we deny the protest. Findings of Fact 1. The U.S. Army Corps of Engineers issued Invitation for Bids (IFB) No. DACW31-93-B-0032 on February 22, 1993, for the purchase of twenty-five personal computer workstations. Protest File, Exhibit 2. 2. Paragraph I.16 of the solicitation incorporated the clause found at Federal Acquisition Regulation (FAR) section 52.219-6, "Notice of Total Small Business Set-Aside." Paragraph C of that clause states in part as follows: Agreement. A manufacturer or regular dealer submitting an offer in its own name agrees to furnish, in performing the contract, only end items manufactured or produced by small business concerns inside the United States, its territories and possessions, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, or the District of Columbia. Protest File, Exhibit 2 at I-19 to I-20. 3. The cover letter which accompanied ISG's bid stated: We understand and accept all terms and conditions contained in the proposal documents. Protest File, Exhibit 3. 4. Unfortunately, however, the bid itself at Section K.11 said: (a) Representation. The offeror represents and certifies as part of its offer that it /[check mark]/ is, /_/ is not a small business concern and that /_/ all, /[check mark]/ not all end items to be furnished will 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. Protest File, Exhibit 3 at K-10. Although ISG intended to indicate that the system it bid would be manufactured by a small business in the United States, an ISG employee inadvertently checked the wrong box. Declaration of Steve Mills (Sept. 15, 1993). 5. The technical literature submitted as part of ISG's bid stated on the first page that: Integrated Systems Group specializes in the design, manufacturing and marketing of a comprehensive range of personal computers. . . . . In-house manufacturing and extensive testing prior to shipping, makes quality and performance pertinent features of all ISG systems. Protest File, Exhibit 3 at part II C. 6. On March 31, 1993, ISG and another bidder, Unitek Technology, Inc., were informed that their bids had been rejected as nonresponsive to the solicitation. Protest File, Exhibits 12, 13. Unitek, like ISG, had checked the box indicating that its system would not be manufactured by a small business in the United States. Both firms were told that "the bid does not establish your legal obligation to comply with Clause I.16 - Notice of Total Small Business Set-Aside." Id. Unitek's bid was lower in price than ISG's bid. Id., Exhibit 7. 7. On April 6, Unitek protested to the agency the rejection of its bid. Unitek asserted that 75 percent of its bid price represented work performed domestically by Unitek in manufacturing the computers and that no bidder could provide a computer system made up entirely of domestically manufactured components. Protest File, Exhibit 15. ISG also protested to the agency, asserting its "clerical error" theory. Id., Exhibit 16. 8. Both firms also intervened in a protest of the same procurement filed at the Board by R&S Computers & Memory Enhancement Products. Protest File, Exhibit 35. ISG additionally filed its own Board protest, again asserting clerical error. Id., Exhibit 32. The protests were dismissed without prejudice in accordance with a stipulation by the parties. The parties agreed to dismiss the Board protests in order to permit respondent to address them as agency level protests. The parties further agreed that the protests could be reinstated within ten days following any adverse decision on the agency protests. Id., Exhibits 42, 43. 9. Following respondent's denial of the agency protests, ISG filed this protest, which is a reinstatement of its original Board protest. None of the other bidders have intervened in this protest or filed protests of their own. Discussion Interested Party Respondent moves the Board to dismiss ISG's protest for lack of an interested party. According to respondent, even if ISG prevails in its protest, it would not receive the award because Unitek, a lower-priced bidder, made the same mistake and would likewise be permitted to correct its bid. We deny respondent's motion. Respondent is correct that, under the Brooks Act, only an "interested party" may pursue a protest at the Board. 40 U.S.C. 759(f)(1) (1988). An interested party is "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 40 U.S.C. 759(f)(9)(B). Construing this language, our appellate authority has stated that: the right to protest an agency's procurement practices before the Board is limited and may be exercised only by an actual or prospective bidder who would have been in line to receive the challenged award. The Board's protest authority does not extend to disappointed bidders who have no chance of receiving the contract. Federal Data Corp. v. United States, 911 F.2d 699, 703 (Fed. Cir. 1990). We do not agree with respondent, however, that Unitek would necessarily receive the award if ISG's protest were to be granted. Although Unitek, like ISG, checked the box indicating that its bid product would not be manufactured by a small business in the United States, Unitek's ground of protest was different than ISG's ground. ISG alleges that it checked the wrong box as the result of a clerical error. As discussed below, in order to win this protest, ISG must prove that its bid, standing alone, unambiguously obligated ISG to supply systems manufactured by a small business in the United States, notwithstanding the erroneous certification. Unitek, on the other hand, did not allege that it checked the wrong box; essentially, Unitek alleged that no small business could truthfully check the other box, which Unitek interpreted as requiring that every component of the system be manufactured by a small business in the United States. Unitek did not argue that its bid, standing alone, obligated it to comply with the solicitation. As respondent correctly pointed out in its decision in Unitek's agency protest, the issue there was whether Unitek was entitled to supplement its bid with a post-award explanation of its responsiveness. Respondent held that Unitek was not permitted to do so and neither respondent nor Unitek has asked the Board to reverse that decision. Thus, we disagree with respondent that granting ISG's protest here would automatically put Unitek ahead of ISG in line for award of the contract. Respondent's motion is denied. The Merits Having said all that, we now deny ISG's protest on the merits. In government contract law, it is beyond cavil that "[t]o be considered for award, a bid must comply in all material respects with the invitation for bids." Integrated Systems Group, Inc. v. Department of Commerce, GSBCA 12420-P, 1993 BPD 164, at 4 (June 15, 1993); 48 CFR 14.301(a) (1992) (FAR 14.301(a)). As the Comptroller General has stated, "[a] bid as submitted must represent an offer to perform, without exception, the exact thing called for in the IFB, so that upon acceptance, the contractor will be bound to perform in accordance with all the terms and conditions of the IFB." Bulloch International, Inc., B-237369, 90-1 CPD 153, at 4 (Feb. 5, 1990). Thus, 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." Propper Manufacturing Co., B-233321, et al., 89-1 CPD 58, at 2 (Jan. 23, 1989). A bid which is ambiguous may not be accepted by the Government. Southwestern Bell Corp., GSBCA 10321-P, 90-1 BCA 22,545, 1989 BPD 376. By checking the box indicating that it would not furnish a product manufactured by a domestic small business, ISG certified that it would not comply with the requirements of the solicitation. ISG alleges that it made a mistake, which it would now like to correct. As discussed below, we hold that respondent correctly determined that such a correction would not be permissible. Two sections of the Federal Acquisition Regulation discuss situations in which a bid may be "corrected." FAR 14.405 provides as follows: A minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services being offered. Numerous decisions of the Comptroller General make it clear that failure to comply with the certification requirement at issue here is not a minor informality or irregularity because the certification "involves a performance commitment by the bidder." Wright Associates, Inc., B-238756, 90-1 CPD 549, at 2 (June 12, 1990).[foot #] 1 The end item certification involves a performance obligation of the bidder, should it become the contractor, enforceable by the ----------- FOOTNOTE BEGINS --------- [foot #] 1 The failure to complete (or erroneously completing) the small business size status portion of the representation is a waivable minor informality. The size status certification involves only the firm's eligibility for award, whereas the second portion of the representation, at issue here, is not waivable "because it involves an obligation to provide supplies manufactured by a small business concern, a key element of a small business set-aside for supplies." Lynd Gear of _____________ Michigan, Inc., B-224068, 86-2 CPD 247, at 2 (Sept. 2, 1986). ______________ ----------- FOOTNOTE ENDS ----------- government. It reflects the view that the socioeconomic aims of the set-aside program are served only if the supplies are manufactured by small business concerns and reflects the Small Business Administration's requirement that a small business set-aside contractor furnish the product of a small business concern. . . . A bidder's failure to make such a commitment in its bid renders the bid nonresponsive because the government, upon acceptance of the bid, would not be able to require the bidder to supply items manufactured by small business concerns. Morgan Lumber Sales, B-234997, 89-1 CPD 410, at 1-2 (Apr. 28, 1989); see Hankins Lumber Co., B-248108, 92-2 CPD 50 (July 27, 1992) ("Where a bid fails to include a properly completed certification which contains performance requirements designed to accomplish the purposes of a small business set-aside, the bid is nonresponsive and must be rejected"). As protester points out, the Comptroller General has, in some cases, permitted the Government to overlook a bidder's failure to complete the required certification where the bidder is otherwise obligated by FAR 52.219-6 to supply the product of a domestic small business. The Comptroller General reasoned in these cases that, since the bidders did not take exception to the requirement, they were obligated to supply the product of a domestic small business. See Certified Slings, Inc., B-243085, 91-1 BPD 442 (May 6, 1991); Concorde Battery Corp., B-235119, 89-2 CPD 4 (June 30, 1989). In no case, however, has the Comptroller General permitted a bidder to "correct" an erroneous certification stating that the bidder will not supply the product of a domestic small business. Protester also calls our attention to FAR 14.406, the other section which in certain circumstances permits correction of a bid: After opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes and in cases where the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid, calling attention to the suspected mistake. If the bidder alleges a mistake, the matter shall be processed in accordance with this section 14.406. Such actions shall be taken before award. FAR 14.406-1. Not all mistakes are subject to correction, however. Section 14.406 continues: 14.406-2 Apparent clerical mistakes. (a) Any clerical mistake, apparent on its face in the bid, may be corrected by the contracting officer before award. . . . Examples of apparent mistakes are- (1) Obvious misplacement of a decimal point; (2) Obviously incorrect discounts . . . ; (3) Obvious reversal of the price f.o.b. destination and price f.o.b. origin; and (4) Obvious mistake in designation of unit. . . . 14.406-3 Other mistakes disclosed before award. In order to minimize delays in contract awards, administrative determinations may be made as described in this 14.406-3 in connection with mistakes in bids alleged after opening of bids and before award. The authority to permit correction of bids is limited to bids that, as submitted, are responsive to the invitation and may not be used to permit correction of bids to make them responsive. This authority is in addition to that in 14.406-2 or that may be otherwise available. FAR 14.406-2, -3 (emphasis added). These sections of the FAR do not permit a bid which is non-responsive in a material way to be corrected to become responsive. Southwestern Bell Corp. To permit such material corrections would create a basic unfairness in the bidding process. University Systems, Inc. v. Department of Energy, GSBCA 11754-P, 92-1 BCA 24,932, 1992 BPD 93. Protester characterizes its mistake as a clerical error, arguing that, notwithstanding its certification to the contrary, its bid unambiguously obligated protester to supply a system manufactured by a small business in the United States. Thus, according to protester, its bid was responsive on its face. Protester points to (1) the statement in the cover letter attached to its bid which stated that ISG understood and accepted the terms and conditions of the IFB, and (2) the statement on the first page of its technical literature indicating that ISG is a manufacturer of personal computers. We agree with respondent that these statements, combined with ISG's certification that it would not supply a system manufactured by a domestic small business, rendered ISG's bid ambiguous at best and, therefore, unacceptable. A general statement that all furnished equipment will meet specifications cannot override specific performance information contained in the appropriate bid sections. See University Systems, Inc. Similarly, the announcement in general terms that ISG is a manufacturer of personal computers contained on the first page of ISG's technical literature does not negate ISG's certification that its bid system would not be manufactured by a domestic small business. ISG's bid nowhere stated that ISG would manufacture the particular system bid here. In fact, it said just the opposite. The Comptroller General explained our reasoning well in a similar case, Propper Manufacturing Co. There, the protester, a small business manufacturer of blood testing kits, claimed that when its bid was read as a whole, it was apparent that only small business end items would be provided, notwithstanding the protester's erroneous certification. Specifically, Propper argued that Food and Drug Administration files referenced by numbers contained in its bid did not indicate that the test kits would be manufactured anywhere other than protester's own manufacturing plant. The Comptroller General said: Regardless of [protester's] contention that this certification was the result of a clerical error, because acceptance of [protester's] bid would not legally obligate the company to furnish small business products, we agree that the bid must be rejected as nonresponsive. With respect to [protester's] post-bid explanation of what it actually intended, responsiveness is determined from the face of the bid itself; to allow a bidder to make its nonresponsive bid responsive after opening would be tantamount to permitting it to submit a new bid, and thus, may not be permitted. Even if [protester's] bid could be read as [protester] suggests and we were to accept the contents of the referenced FDA filings as part of its bid, [protester's] bid is, at best, ambiguous since it contains a specific certification that [protester] will not be supplying small business products and an apparent contradictory statement incorporated by reference that its place of performance is a small business. Id. at 3 (citations omitted). Here, as in Propper, ISG certified that it would not comply with the requirement to supply a product manufactured by a domestic small business. That certification, which related to a material requirement of the solicitation, rendered ISG's bid nonresponsive. We agree with the Comptroller General that the integrity of the bidding process requires that such bids be rejected. Decision The protest is DENIED. The suspension of respondent's delegation of procurement authority lapses by its terms. _______________________ ROBERT W. PARKER Board Judge We concur: ______________________ STEPHEN M. DANIELS Board Judge ______________________ JAMES W. HENDLEY Board Judge