Universal Construction Company, Inc., d/b/a Turner-Universal, B-292407, August 18, 2003

B-292407 Aug 18, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Agency properly awarded a contract to an Historically Underutilized Business Zone small business concern whose evaluated price was not more than 10 percent higher than the evaluated price of a large business. The IFB was issued on an unrestricted basis on March 17. Means a small business concern that appears on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration. (b) Evaluation preference. (1) Offers will be evaluated by adding a factor of 10 percent to the price of all offers. Except- (i) Offers from HUBZone small business concerns that have not waived the evaluation preference. (The second through fourth low bids were submitted by non-HUBZone small business concerns and the fifth and sixth low bids were submitted by large businesses.). View Decision Universal Construction Company, Inc., d/b/a Turner-Universal, B-292407, August 18, 2003 DIGEST Attorneys DECISION Universal Construction Company, Inc., d/b/a Turner-Universal, protests the award of a contract to GSC Construction, Inc. under invitation for bids (IFB) No. MSFC-0-03-03, issued by the National Aeronautics and Space Administration (NASA), for the construction of a 5-story office building at the Marshall Space Flight Center in Alabama. Turner-Universal, a large business that submitted the apparent low bid, protests the award to GSC, an Historically Underutilized Business Zone (HUBZone) small business concern, as a result of the agency's application of a 10 percent HUBZone price evaluation preference to Turner-Universal's low bid. We deny the protest. The IFB was issued on an unrestricted basis on March 17, 2003, and incorporated the clause at Federal Acquisition Regulation (FAR) Sec. 52.219-4, captioned "Notice of Price Evaluation Preference for HUBZone Small Business Concerns." /1/ In relevant part, this clause provides the following: (a) Definition. "HUBZone small business concern," as used in this clause, means a small business concern that appears on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration. (b) Evaluation preference. (1) Offers will be evaluated by adding a factor of 10 percent to the price of all offers, except- (i) Offers from HUBZone small business concerns that have not waived the evaluation preference; (ii) Otherwise successful offers from small business concerns[.] FAR Sec. 52.219-4(a), (b); see Delaney Constr. Corp.; Tug Hill Constr., Inc. v. United States, 56 Fed. Cl. 470 (2003). Ten firms, including Turner-Universal and GSC, submitted bids by the stated bid opening time. As relevant here, Turner-Universal, a large business, submitted the apparent low bid; GSC, a HUBZone small business concern, submitted the apparent seventh low bid. (The second through fourth low bids were submitted by non-HUBZone small business concerns and the fifth and sixth low bids were submitted by large businesses.) In accordance with the clause at FAR Sec. 52.219-4, as quoted above, because GSC was a HUBZone small business concern and it did not waive the application of the 10 percent HUBZone price evaluation preference, the agency added a 10 percent price evaluation preference to the bid submitted by Turner-Universal. The following table summarizes the price evaluation: . Type of Bid as 10% Bid as . Business Submitted Preference Evaluated Turner- Large $17,056,832 $1,705,683 $18,762,515 Universal Business . HUBZone GSC Small $17,954,010 N/A $17,954,010 . Business Contracting Officer's Statement at 6. /2/ As a result of the application of the 10 percent HUBZone price evaluation preference, GSC's bid was evaluated as low. The agency awarded the contract to GSC. Turner-Universal protests the agency's application of the 10 percent HUBZone price evaluation preference to its bid, which resulted in GSC's evaluated price being lower than Turner-Universal's evaluated price. The Small Business Act provides that in any case in which a contract is to be awarded on the basis of full and open competition, the price offered by a qualified HUBZone small business concern shall be deemed as being lower than the price offered by another offeror (other than another small business concern), if the price offered by the qualified HUBZone small business concern is not more than 10 percent higher than the price offered by the otherwise lowest, responsive, and responsible offeror. 15 U.S.C. Sec. 657a(b)(3)(A). In other words, in accordance with the Small Business Act and the regulatory implementation of that Act as contained in the clause at FAR Sec.