Fidelity Technologies Corporation, B-276425, May 30, 1997

B-276425 May 30, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest is sustained where protester's proposal included an apparently erroneous small disadvantaged business certification. Was on notice of the apparent error and failed to provide protester an opportunity to correct it. The protester contends that it was improperly denied the award on the basis of a clerical error in its proposal concerning its status as a small disadvantaged business (SDB) concern which should have been apparent to the agency or. Award was to be made to the responsible offeror whose technically acceptable proposal offered the lowest reasonable and realistic price. Contains the following required representations: "(b) Representations. (1) The offeror represents and certifies as part of its offer that it is a small business concern. View Decision Matter of: Fidelity Technologies Corporation File: B-276425 Date: May 30, 1997 DIGEST Attorneys DECISION Fidelity Technologies Corporation protests the award of a contract by the Department of the Navy, Naval Air Warfare Center (NAWC), Orlando, Florida, to Lockheed Martin Aerospace Corporation under request for proposals (RFP) No. N61339-96-R-0029 for simulator operation and maintenance (COMS) at various naval facilities. The protester contends that it was improperly denied the award on the basis of a clerical error in its proposal concerning its status as a small disadvantaged business (SDB) concern which should have been apparent to the agency or, alternatively, put the agency on notice of a possible certification error, and that the agency failed to hold meaningful discussions with Fidelity because the agency failed to raise the certification anomaly. We sustain the protest. The RFP, issued on July 22, 1996, contemplated the award of a firm, fixed- priced contract for a base 2-month mobilization phase-in period (lot 1) and a 5-month COMS services period (lot 2) with options to continue the COMS services up to an additional 53 months. Award was to be made to the responsible offeror whose technically acceptable proposal offered the lowest reasonable and realistic price. The RFP contained the clause at Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 252.219-7006, entitled "Notice of Evaluation Preference for Small Disadvantaged Business (SDB) Concerns," a clause which provides for a 10-percent price preference in favor of proposals submitted by SDB concerns. For purposes of determining eligibility for the price evaluation preference, the RFP contained the standard "Small Disadvantaged Business Concern Representation" clause found in Federal Acquisition Regulation (FAR) Sec. 52.219-1, which requires an offeror to represent its status as a small business. Specifically, the clause, in relevant part, contains the following required representations: "(b) Representations. (1) The offeror represents and certifies as part of its offer that it is a small business concern, is not a small business concern. "(2) (Complete only if offeror represented itself as a small business concern in block (b)(1) of this section.) The offeror represents as part of its offer that it is, is not a small disadvantaged business concern. "(3) (Complete only if offeror represented itself as a small business concern in block (b)(1) of this section.) The offeror represents as a part of its offer that it is, is not a women-owned small business concern." The RFP also contained DFARS Sec. 252.219-7000, "Small Disadvantaged Business Concern Representation," a clause which requires an offeror to indicate membership, if applicable, in any of a list of specified ethnic groups which are generally presumed to be socially and economically disadvantaged and which also calls for the offeror to represent its SDB status. Six technically acceptable proposals, including Fidelity's, were received by the October 28, 1996, closing date. In Fidelity's proposal, it had marked the boxes under the FAR Sec. 52.219-1 representations clause which indicated that it was not a small business and not an SDB, and, under the DFARS Sec. 252.219-7000 clause, it had again certified that it was not an SDB. On the other hand, it also affirmatively executed paragraph (b) of the SDB representation clause by identifying its ownership as Subcontinent Asian American, and it had listed, under its past performance record, contracts which it was awarded as an SDB contractor. The agency conducted discussions with offerors, including with Fidelity, but did not raise the question of Fidelity's SDB status and the apparent inconsistencies in its SDB-related certifications during those discussions. Fidelity, whose proposal price was $10,052,948, was treated as a large business and award was made to Lockheed Martin Aerospace Corporation on February 28, at a price of $9,510,760.