B-199576, JUL 28, 1980

B-199576, JUL 28, 1980

DIGEST: PROTEST, REGARDING SMALL PURCHASE PROCEDURES, WHICH CONTENDS: (1) THAT AGENCY MUST AWARD TO SECOND LOW QUOTER; AND (2) THAT AGENCY IS PRECLUDED FROM CALLING FOR SECOND ROUND OF BEST AND FINAL OFFERS AFTER IT IS DISCOVERED THAT ONE COMPETITOR MADE MISTAKE IN INITIAL QUOTE, IS SUMMARILY DENIED AS PROTESTER'S INITIAL SUBMISSION FAILS TO SHOW ANY IMPROPRIETY.

CONN LIBRARY SERVICES:

CONN LIBRARY SERVICES (CONN) PROTESTS THE SMALL PURCHASE PROCUREMENT PROCEDURES UTILIZED BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS) UNDER REQUEST FOR QUOTATION (RFQ) NO. 80-62.

CONN, A SUPPLIER OF LIBRARY SHELVING AND FURNITURE, RECEIVED THE RFQ IN EARLY JUNE. THE CLOSING DATE WAS JUNE 24, 1980. ON JUNE 25, 1980, CONN WAS ADVISED: (1) THAT ONE OF THE THREE QUOTES WAS LOWER THAN CONN'S; (2) THAT THE LOW QUOTER HAD "MADE A MISTAKE"; AND (3) THAT HHS WAS REOPENING THE PROCUREMENT AND REQUESTING BEST AND FINAL OFFERS (B&FO) BY JULY 15, 1980.

CONN PROTESTS ON THE GROUND THAT AS "THE LOWEST QUALIFIED BID *** IT HAS A LEGAL RIGHT TO THE CONTRACT." WE DISAGREE. THE RFQ STATED ON ITS FACE THAT IT WAS:

"*** A REQUEST FOR INFORMATION, AND QUOTATIONS FURNISHED ARE NOT OFFERS. *** THIS REQUEST DOES NOT COMMIT THE GOVERNMENT TO PAY ANY COSTS INCURRED IN THE PREPARATION OR THE SUBMISSION OF THIS QUOTATION, OR TO PROCURE OR CONTRACT FOR SUPPLIES OR SERVICES."

HHS'S IMPLEMENTATION OF THE FEDERAL PROCUREMENT REGULATIONS' (FPR) SMALL PURCHASES PROVISION, FPR 1-3.6 (1977 ED.), REQUIRES COMPETITION FROM A "REASONABLE NUMBER OF QUALIFIED SOURCES" IN ORDER "TO ASSURE THAT THE PROCUREMENT IS TO THE ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." 41 C.F.R., CHAPTER 3, SEC. 3-3.603-50(B)(3) (1979). THE TERM "REASONABLE NUMBER OF QUALIFIED SOURCES" IS DEFINED, IN THE CASE OF PURCHASES BETWEEN $5,000 AND $10,000, TO BE A MINIMUM OF THREE. C.F.R., CHAPTER 3, SUPRA. PRIOR TO AWARD THE CONTRACTING OFFICER IS REQUIRED TO DETERMINE THAT THE PROPOSED PRICE IS REASONABLE. 41 C.F.R., CHAPTER 3, SEC. 3-3.603-50(B)(9). IT IS APPARENT THAT ONCE ONE OF THE THREE QUOTES RECEIVED WAS EXCLUDED FROM THE COMPETITION THE CONTRACTING OFFICER NO LONGER HAD THE MINIMUM NUMBER OF REQUIRED COMPETITORS UPON WHICH TO FOUND HIS DETERMINATION AS TO THE REASONABLENESS OF THE PROPOSED PRICE. MOREOVER, WE HAVE NOT OBJECTED TO A SECOND ROUND OF B&FO'S WHERE ONE OF SEVERAL COMPETITORS RESPONDING TO AN RFQ MAKES A MISTAKE IN ITS QUOTATION WHICH IS ONLY DISCOVERED AFTER THE INITIAL CLOSING DATE FOR B&FO'S. SEE PROPRIETARY COMPUTER SYSTEMS, INC., 57 COMP.GEN. 800 (1978), 78-2 CPD 212.

THEREFORE, WE SEE NO IMPROPRIETY IN THE INSTANT PROCUREMENT PROCEDURES AND THE PROTEST IS SUMMARILY DENIED AS THE PROTESTER'S INITIAL SUBMISSION SHOWS IT IS WITHOUT MERIT. DECILOG, INC., B-193914, FEBRUARY 5, 1979, 79-1 CPD 81.