Orincon Corporation, B-276704, July 18, 1997

B-276704 Jul 18, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Where a proposal is unacceptable as submitted for failing to comply with the small business set-aside solicitation's subcontracting limitation. The proposal may properly be excluded from the competitive range and the contracting agency is under no obligation to conduct discussions with the offeror. The Navy checked the boxes indicating that the procurement is 100 percent set aside for small business. Which is required by FAR Sec. 19.508(c) to be inserted in solicitations for total small business set-asides. Provides that "[o]ffers are solicited only from small business concerns" and that "[a]ny award resulting from this solicitation will be made to a small business concern.". The amendment informed offerors that any proposal updates directly caused "by this action" were to be received by the Navy by February 18. View Decision Matter of: Orincon Corporation File: B-276704 Date: July 18, 1997 DIGEST Attorneys DECISION Orincon Corporation protests the actions of the Department of the Navy, Space and Naval Warfare Systems Command in eliminating Orincon from the competition for the small business set-aside contract to be awarded under request for proposals (RFP) No. N00039-96-R-0086(Q), for technology, analytical, engineering, program management, and administrative services in support of agency command, control, communications, computers, and intelligence programs. We deny the protest. The RFP, issued on June 10, 1996, contemplated the award of a cost-plus-fixed-fee level-of-effort contract for a base year with 3 option years to the responsible offeror offering the best overall value to the government, technical and management approach and price considered. In the procurement information section of the RFP cover sheet, the Navy checked the boxes indicating that the procurement is 100 percent set aside for small business. As issued, however, the RFP omitted the clause found at Federal Acquisition Regulation (FAR) Sec. 52.219-6, Notice of Total Small Business Set-Aside, which is required by FAR Sec. 19.508(c) to be inserted in solicitations for total small business set-asides. This clause, among other things, provides that "[o]ffers are solicited only from small business concerns" and that "[a]ny award resulting from this solicitation will be made to a small business concern." The RFP, as issued, also omitted the clause found at FAR Sec. 52.219-14, Limitations on Subcontracting, which FAR Sec. 19.508(e) requires to be inserted in the solicitation for a small business set-aside, and which reads, in relevant part, as follows: (b) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for-- (1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. [1] The RFP informed offerors that the government intended to evaluate proposals and award a contract without discussions, but reserved the right to conduct discussions if necessary with offerors determined to be in the competitive range. The Navy received proposals, including Orincon's, by August 7. Orincon, which certified itself to be a small business concern, proposed to team with two subcontractors, also small businesses, to perform 70 percent of the work under the contract. During the course of evaluating Orincon's proposal, the contracting officer discovered that Orincon's proposal indicated that it would not itself incur at least 50 percent of the personnel costs of performance with its own employees. Thereupon, the contracting officer reviewed the solicitation and realized that the required Notice of Small Business Set-aside and Limitations on Subcontracting clauses had been inadvertently omitted from the RFP. On February 4, 1997, the Navy issued amendment 0005 to Orincon and the other offerors to incorporate those two clauses into the solicitation. The amendment informed offerors that any proposal updates directly caused "by this action" were to be received by the Navy by February 18, and that no other proposal updates would be considered. According to the Navy, Orincon was the only offeror which needed to take advantage of the opportunity to revise its proposal in response to amendment 0005. Orincon, however, did not revise its proposal. The contracting officer then determined that Orincon was "nonresponsible" for proposing to subcontract out more than 50 percent of the work under the contract, and, on February 26, referred his nonresponsibility determination to the Small Business Administration (SBA) pursuant to Certificate of Competency (COC) procedures.