Hroma Corporation, B-285053, June 6, 2000

B-285053 Jun 06, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Bidder that is found nonresponsible by contracting agency. Who is eligible for. Remains in line for award until the Small Business Administration proceedings are resolved. Such a bidder is an interested party to protest cancellation of the IFB. 2. 3. The agency should have awarded it a contract. Which was issued on November 18. At 4. /1/ Three bids were opened on the January 14. 620 was lowest of the three. The contracting officer determined that Hroma was not a responsible contractor because it lacked experience on a project of the given project's magnitude and because it did not have the ability to perform 60 percent of the work with its own forces and organization. The SBA notified the Corps that it was suspending action on the COC determination because the IFB contained the wrong subcontracting limitation clause. View Decision Matter of: Hroma Corporation File: B-285053 Date: June 6, 2000 DIGEST Attorneys DECISION Hroma Corporation protests the cancellation after bid opening of invitation for bids (IFB) No. DACW33-00-B-0003, issued by the U.S. Army Corps of Engineers, New England District, for painting and rehabilitation of the Cape Cod Canal Vertical Lift Railroad Bridge, Buzzards Bay, Massachusetts. The protester contends that rather than canceling the IFB, the agency should have awarded it a contract. We deny the protest. The IFB, which was issued on November 18, 1999 as a total small business set-aside, included the following two requirements of relevance to this protest: All Contractors and Subcontractors that perform surface preparation or coating application for this project shall be certified by the Society for Protective Coatings (formerly Steel Structures Painting Council) (SSPC) to the requirements of SSPC QP-1 prior to the day of contract award, and shall remain certified while accomplishing any surface preparation or coating application. IFB, Document 00010, at 5, and: The contractor shall perform on the site, and with its own organization, work equivalent to at least sixty percent (60%) of the total amount of work to be performed under the contract. Federal Acquisition Regulation (FAR) Sec. 52.236-1, incorporated into the IFB at Document 00800, at 4. /1/ Three bids were opened on the January 14, 2000 opening date. Hroma's bid of $10,149,620 was lowest of the three. The contracting officer determined that Hroma was not a responsible contractor because it lacked experience on a project of the given project's magnitude and because it did not have the ability to perform 60 percent of the work with its own forces and organization. Letter from Agency to SBA 1 (Feb. 29, 2000). In accordance with FAR Sec. 19.602-1, the Corps referred the contracting officer's nonresponsibility determination to the SBA for possible issuance of a certificate of competency (COC). On March 23, the SBA notified the Corps that it was suspending action on the COC determination because the IFB contained the wrong subcontracting limitation clause. The SBA informed the Corps that because the solicitation was a small business set-aside, it should have included FAR Sec. 52.219-14, requiring the contractor to perform 15 percent of the cost of the contract with its own employees, /2/ rather than FAR Sec. 52.236-1, which, as completed by the Corps, required the contractor to perform 60 percent of the work with its own organization. In this regard, while FAR Sec. 36.501(b) instructs contracting officers to insert the clause at Sec. 52.236-1 in solicitations and contracts when a fixed-price construction contract is contemplated and the contract amount is expected to exceed $1 million, it exempts those contracts, such as the one here, which are to be awarded pursuant to a small business set-aside. Instead, FAR Sec. 19.508(e) instructs contracting officers to insert the clause at Sec. 52.219-14 in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $100,000. Upon learning that the IFB should have incorporated FAR Sec. 52.219-14, requiring the contractor to perform at least 15 percent of the cost of the contract with its own employees, rather than FAR Sec. 52.236-1 as completed by the Corps, requiring the contractor to perform 60 percent of the total amount of work with its own organization, the contracting officer determined that the IFB should be canceled.