B-163156, MAY 14, 1968

B-163156: May 14, 1968

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IS A MATTER OF PROCUREMENT RESPONSIBILITY AND CONVENIENCE. YOU ADVISE THAT THE REASON THE PROCURING ACTIVITY WAS NOT REQUIRED TO MAKE AWARD WAS DUE TO THE FACT THAT YOUR FIRM HAD AGREED TO CONTINUE THE SERVICES UNDER LAST YEAR'S CONTRACT. IT SHOULD BE NOTED THAT OUR ADVICE IN THE ABOVE-QUOTED PARAGRAPH WAS BASED ON TWO CONSIDERATIONS. THE CRITICAL TIME FOR A DETERMINATION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY IS THE TIME FOR PERFORMANCE. OUR ADVICE TO THE SECRETARY OF THE ARMY IS A RECOGNITION BY OUR OFFICE THAT THE TIMELY PROCUREMENT OF NECESSARY SUPPLIES AND SERVICES MAY PROPERLY TAKE PRECEDENCE OVER ATTEMPTS BY BIDDERS TO COMPLY WITH REQUIREMENTS AFFECTING RESPONSIBILITY. THE STATEMENT THAT THE "PROCURING ACTIVITY'S TIME REQUIREMENTS APPARENTLY DID NOT REQUIRE" AWARD HAS REFERENCE TO THE FACT THAT FURTHER ACTION ON THE PROCUREMENT WAS SUSPENDED PENDING RESOLUTION OF THE PROTEST BY OUR OFFICE.

B-163156, MAY 14, 1968

TO LOFTIN'S TRANSFER AND STORAGE CO., INC.:

WE REFER TO A LETTER DATED APRIL 17, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-163156, APRIL 11, 1968. WITHOUT QUESTIONING THE LEGAL BASIS OF OUR DECISION, YOUR LETTER DRAWS ATTENTION TO THE LAST PARAGRAPH OF OUR DECISION WHEREIN WE STATED THAT:

"* * * EVEN IF WE VIEW THE INVITATION REQUIREMENT INVOLVED HERE AS FIXING THE TIME OF COMPLIANCE AS OF THE DATE OF BID OPENING, SUCH LIMITATION NORMALLY RELATES TO THE TIMELY PROCUREMENT OF THE REQUESTED SERVICES, AND IS A MATTER OF PROCUREMENT RESPONSIBILITY AND CONVENIENCE. IN THIS REGARD, WE WOULD NOT BE REQUIRED TO OBJECT TO A DETERMINATION BY THE CONTRACTING OFFICER THAT THE PROCUREMENT COULD NOT BE DELAYED PENDING ICC CONSIDERATION OF REQUESTS FOR OPERATING AUTHORITY, AND THAT A PARTIAL AWARD MUST BE MADE PROMPTLY. HOWEVER, SINCE THE PROCURING ACTIVITY'S TIME REQUIREMENTS APPARENTLY DID NOT REQUIRE SUCH ACTION, WE BELIEVE THAT FURTHER CONSIDERATION OF THE BIDS CONSISTENT WITH THIS DECISION WOULD BE PROPER UNDER THE REPORTED CIRCUMSTANCES.'

YOU ADVISE THAT THE REASON THE PROCURING ACTIVITY WAS NOT REQUIRED TO MAKE AWARD WAS DUE TO THE FACT THAT YOUR FIRM HAD AGREED TO CONTINUE THE SERVICES UNDER LAST YEAR'S CONTRACT, AND THAT SUCH ACTION NOW HAS THE EFFECT OF UNFAIRLY PREVENTING YOUR FIRM FROM BEING AWARDED A CONTRACT UNDER THE INVITATION CONSIDERED IN OUR DECISION. ALSO, YOU POINT OUT THAT SUBSEQUENT TO THE TIME HUGHES MOVING AND STORAGE COMPANY OBTAINED OPERATING AUTHORITY, THE PROCURING ACTIVITY HAS ALSO BEEN OBTAINING SERVICES FROM THEM ON A SHIPMENT BY SHIPMENT BASIS.

INITIALLY, IT SHOULD BE NOTED THAT OUR ADVICE IN THE ABOVE-QUOTED PARAGRAPH WAS BASED ON TWO CONSIDERATIONS. FIRST, AS WE INDICATED IN OUR DECISION, THE CRITICAL TIME FOR A DETERMINATION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY IS THE TIME FOR PERFORMANCE. VIEWED IN THIS CONTEXT, OUR ADVICE TO THE SECRETARY OF THE ARMY IS A RECOGNITION BY OUR OFFICE THAT THE TIMELY PROCUREMENT OF NECESSARY SUPPLIES AND SERVICES MAY PROPERLY TAKE PRECEDENCE OVER ATTEMPTS BY BIDDERS TO COMPLY WITH REQUIREMENTS AFFECTING RESPONSIBILITY. SECOND, THE STATEMENT THAT THE "PROCURING ACTIVITY'S TIME REQUIREMENTS APPARENTLY DID NOT REQUIRE" AWARD HAS REFERENCE TO THE FACT THAT FURTHER ACTION ON THE PROCUREMENT WAS SUSPENDED PENDING RESOLUTION OF THE PROTEST BY OUR OFFICE. IN THIS RESPECT, THE CONTRACTING OFFICER'S REPORT DATED JANUARY 26, 1968, ADVISED THAT THE PROCURING ACTIVITY'S NEEDS WERE NOT OF SUCH URGENCY AS TO AUTHORIZE AN AWARD IN ACCORDANCE WITH ASPR 2 407.9 (B) (3), NOTWITHSTANDING THE PROTEST.

WITH PARTICULAR REGARD TO THE PROCURING ACTIVITY'S ACTIONS DURING THE PENDENCY OF THE PROTEST, WE HAVE INFORMALLY CONFIRMED THAT DURING THAT PERIOD YOUR FIRM WAS CONTACTED TO DETERMINE WHETHER YOU WOULD BE WILLING TO RENDER NECESSARY SERVICES DURING THE INTERIM, AND YOU AGREED TO FURNISH SUCH SERVICES IN ACCORDANCE WITH THE PRIOR CONTRACT TERMS. SUBSEQUENTLY, A SIMILAR INQUIRY WAS MADE TO HUGHES MOVING AND STORAGE COMPANY, AND THAT FIRM AGREED TO FURNISH SERVICES IN ACCORDANCE WITH THE TERMS STIPULATED IN THE BID. ON THIS BASIS, THE TRANSPORTATION OFFICER ISSUED WORK ORDERS RANGING FROM $9.00 TO $200 TO SECURE THE NEEDED SERVICES.

WHILE THE WILLINGNESS TO FURNISH SERVICES ON REQUEST WAS BENEFICIAL TO THE GOVERNMENT, AS WELL AS YOUR FIRM, WE CANNOT AGREE THAT SUCH CIRCUMSTANCE WOULD AFFORD A PROPER LEGAL BASIS FOR NOT PERMITTING FURTHER CONSIDERATION OF THE BIDS CONSISTENT WITH OUR DECISION. MOREOVER, WE CONSIDER THE PROCURING ACTIVITY'S ACTIONS TO BE CONSISTENT WITH AND IN FURTHERANCE OF OUR BID PROTEST PROCEDURES CODIFIED AT 4 CFR 20.1 AND 20.2. ALSO, SEE B-160538, B-160540, MARCH 24, 1967, COPY ENCLOSED, WHEREIN WE HELD THAT THE FACT A LICENSE WAS ACQUIRED BY A BIDDER DURING THE PENDENCY OF A PROTEST BUT SUBSEQUENT TO THE ANTICIPATED TIME OF PERFORMANCE DID NOT PRECLUDE CONSIDERATION OF THE BID.

Nov 20, 2017

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  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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