B-170175, DEC. 1, 1970

B-170175, DEC. 1, 1970

BID PROTEST - NEGOTIATIONS - CONFIDENTIAL DATA DENIAL OF PROTEST OF DEAL'S INTERIORS AGAINST THE PROCUREMENT PROCEDURES USED IN CONNECTION WITH THE REQUEST FOR QUOTATIONS SOLICITING IDEAS FOR REDECORATING A DINING HALL AT BLYTHEVILLE AIR FORCE BASE. IN RESPONSE TO A RFQ THAT WAS FOR PLANNING PURPOSES ONLY AND UPON WHICH THE GOVERNMENT DID NOT INTEND TO AWARD A CONTRACT, PROTESTANT SUBMITTED A PROPOSAL SPECIFYING THAT, SHOULD THE WORK BE DONE BY ANOTHER FIRM, NONE OF THEIR SUGGESTIONS, LAYOUTS, ETC., COULD BE USED WHEN PLACING THE JOB UP FOR FINAL BIDS. CONSIDERING THAT THE PROPOSAL WAS SUBMITTED DIRECTLY TO THE FOOD SERVICE OFFICER, THAT WHEN REPRESENTATIVES OF THE PROCUREMENT OFFICE DID BECOME AWARE, SUGGESTING WITHDRAWAL OF PROTESTANT'S QUALIFIED SUBMISSION, THE REVEALING TO A COMPETITOR OF SOME OF IDEAS IN THE PROPOSAL OCCURRED PRIOR TO A REQUEST THAT THEY BE HELD IN CONFIDENCE.

TO DEAL'S INTERIORS:

REFERENCE IS AGAIN MADE TO YOUR LETTER OF JUNE 25, 1970, WITH ENCLOSURES, PROTESTING AGAINST THE PROCUREMENT PROCEDURES USED IN CONNECTION WITH REQUEST FOR QUOTATIONS (RFQ) NO. F03601-70-Q-0773 AND INVITATION FOR BIDS (IFB) NO. F03601-70-B-0926, AS TO WHICH YOU RESPONDED TO THE FIRST STEP BY THE SUBMISSION OF A TECHNICAL PROPOSAL.

THE ABOVE RFQ WAS ISSUED ON MARCH 20, 1970, AND SOLICITED IDEAS AND SUGGESTIONS ON REDECORATING A DINING HALL AT BLYTHEVILLE AIR FORCE BASE. AS NO FUNDS WERE THEN AVAILABLE OR ANTICIPATED IN THE NEAR FUTURE, THE RFQ WAS FOR PLANNING PURPOSES ONLY AND THIS FACT WAS CLEARLY CONVEYED TO ALL PROSPECTIVE QUOTERS BY THE FOLLOWING STATEMENT FOUND ON THE FIRST PAGE THEREOF:

"THIS REQUEST FOR QUOTATIONS IS FOR PLANNING PURPOSES ONLY. THE GOVERNMENT DOES NOT INTEND TO AWARD A CONTRACT ON THE BASIS OF THIS REQUEST FOR QUOTATION, OR OTHERWISE PAY FOR THE INFORMATION SOLICITED."

THE RECORD INDICATES THAT IN RESPONSE TO THIS RFQ YOU SUBMITTED A PROPOSAL ON APRIL 24, 1970. THAT PROPOSAL WAS QUALIFIED BY THE FOLLOWING LANGUAGE:

" *** WE WANT IT UNDERSTOOD THAT, SHOULD THIS WORK BE DONE BY OTHERS THAN OURSELVES, THAT OUR SUGGESTIONS, LAYOUTS AND SPECIFICATIONS WILL NOT BE USED, IN WHOLE OR IN PART, WHEN PLACING THE JOB UP FOR FINAL BIDS. SHOULD THE USE OF OUR SELECTION OF MATERIALS, SUGGESTIONS, LAYOUTS AND SPECIFICATIONS BE DESIRED, IN WHOLE OR IN PART, AS A BASE ON WHICH TO REQUEST BIDS BY OTHERS, THEN WE WILL EXPECT TO BE COMPENSATED FOR PROFESSIONAL SERVICES AS OUR INTEREST MAY APPEAR."

IT APPEARS, HOWEVER, THAT THIS PROPOSAL, ALTHOUGH ADDRESSED TO THE GOVERNMENT BUYER FOR THE PROJECT, WAS NOT RECEIVED BY THE PROCUREMENT OFFICE BUT WAS SUBMITTED DIRECTLY TO THE FOOD SERVICE OFFICER. THAT OFFICER APPARENTLY HAD RESPONSIBILITY FOR THE OPERATION OF THE DINING FACILITY BUT WAS NOT INVOLVED IN PROCUREMENT FUNCTIONS. MOREOVER, IT APPEARS THAT WHEN REPRESENTATIVES OF THE PROCUREMENT OFFICE DID BECOME AWARE OF YOUR QUALIFIED SUBMISSION AND SUGGESTED WITHDRAWAL OF YOUR PROPOSAL, YOU REFUSED TO TAKE SUCH ACTION.

YOU FIRST CONTEND THAT SOME OF THE IDEAS AND PROPOSALS EXPRESSED IN YOUR APRIL 24, 1970, LETTER WERE REVEALED TO A COMPETITOR CONTRARY TO YOUR SPECIFIC REQUEST IN THE FOREGOING LETTER THAT ALL MATTERS THEREIN WERE TO BE CONFIDENTIAL. HOWEVER, THAT LETTER DID NOT CLEARLY CONVEY A REQUEST FOR CONFIDENTIAL TREATMENT OF YOUR PROPOSAL. EVEN IF SUCH A REQUEST MAY BE INFERRED FROM YOUR LETTER, IT APPEARS TO EXIST ONLY IN THE SITUATION WHERE ACTION WAS TO BE TAKEN TO ACCOMPLISH THE PROCUREMENT.

THE RECORD BEFORE US CONTAINS A STATEMENT BY THE FOOD SERVICE OFFICER TO THE EFFECT THAT, PRIOR TO THE SUBMISSION OF QUOTATIONS, CONVERSATIONS WERE HELD WITH BOTH YOU AND YOUR COMPETITOR FOR THE PURPOSE OF ACHIEVING A WORKABLE AND PROFESSIONAL DECOR FOR THE PROJECT. DURING THOSE PLANNING CONVERSATIONS, IT MAY WELL BE THE CASE THAT CERTAIN OF YOUR ADMITTEDLY ORIGINAL IDEAS, SUCH AS THE USE OF PERMA GRAIN FLOORING AND KIRSCH ARCH EMINENCE, WERE CONVEYED TO YOUR COMPETITOR. EVEN CONCEDING THAT SUCH DISCLOSURE WAS MADE, THE FOOD SERVICE OFFICER STATES THAT SHE NEVER HEARD YOU SAY THAT YOUR PLANS WERE CONFIDENTIAL AND THAT THE AVAILABILITY OF PERMA GRAIN FLOORING AND KIRSCH ARCH EMINENCE PRODUCTS WAS BROUGHT TO HER ATTENTION PRIOR TO THE TIME YOU SUBMITTED YOUR FINAL PLANS AS QUALIFIED BY YOUR LETTER. MOREOVER, SHE STATES THAT SINCE HER ATTENTION WAS DIRECTED TO THE FOREGOING TWO PRODUCTS, SHE HAS NOTED SEVERAL NATIONAL ADVERTISEMENTS FOR THE SAME. IN THESE CIRCUMSTANCES, WE MAY CONCLUDE THAT THE DISCLOSURE OF ANY OF YOUR IDEAS OCCURRED, IF AT ALL, PRIOR TO A REQUEST ON YOUR PART THAT THEY BE HELD IN CONFIDENCE.

THE SECOND POINT OF YOUR PROTEST DEALS WITH THE REQUIREMENT IN THE SECOND -STEP IFB FOR BID, PERFORMANCE, AND PAYMENT BONDS. YOUR FIRM WAS UNABLE TO COMPLY WITH THIS REQUIREMENT BECAUSE ITS SMALL BUSINESS ADMINISTRATION LOAN REMAINED UNPAID. CONSEQUENTLY, YOU DID NOT SUBMIT A BID. YOU STATE THAT THERE HAD BEEN NO INDICATION THAT BONDS WOULD BE REQUIRED UNTIL A FEW DAYS BEFORE THE ISSUANCE OF THE IFB AND THAT IF SUCH A REQUIREMENT HAD BEEN STATED IN STEP ONE OF THE PROCUREMENT, YOUR INITIAL PROPOSAL WOULD HAVE BEEN MADE IN COOPERATION WITH A BONDED CONTRACTOR.

THE CONTRACTING OFFICER ADVISES THAT HE ORIGINALLY CONSIDERED THIS PROCUREMENT TO BE ONE FOR "SERVICES" FOR WHICH BONDS WERE NOT NEEDED. HOWEVER, WHEN, AFTER EVALUATION OF THE FIRST-STEP PROPOSALS IT BECAME CLEAR THAT THE STRUCTURE WAS TO BE MODIFIED SUBSTANTIALLY, IT BECAME NECESSARY TO CATEGORIZE THE PROCUREMENT AS ONE FOR "CONSTRUCTION" WHICH REQUIRES THE FURNISHING OF APPROPRIATE BONDS.

GENERALLY, PERFORMANCE AND PAYMENT BONDS ARE REQUIRED BY STATUTE PRIOR TO THE AWARD OF ANY CONTRACT IN EXCESS OF $2,000 INVOLVING THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING. SEE 40 U.S.C. 270A. ALTHOUGH CERTAIN EXCEPTIONS TO THIS STATUTORY REQUIREMENT DO EXIST, SEE 40 U.S.C. 270E AND PARAGRAPH 10-103.3 OF THE ARMED SERVICES PROCUREMENT REGULATION, THEY ARE NOT APPLICABLE UNDER THE FACTS OF THE PRESENT CASE. THE CONTRACTING OFFICER WAS, THEN, NEVER IN A POSITION TO WAIVE THE REQUIREMENT FOR THESE BONDS ONCE IT WAS DETERMINED THAT THE PROPOSED CONTRACT WAS OF THE TYPE TO WHICH THEY WERE APPLICABLE.

MOREOVER, WHILE IT MAY HAVE BEEN PREFERABLE TO HAVE ADVISED ALL BIDDERS OF SUCH BOND REQUIREMENTS AS EARLY AS POSSIBLE IN THE PROCUREMENT PROCESS, IT DOES NOT APPEAR THAT, IN THIS INSTANCE, THE EXACT NATURE OF THE CONTRACT WAS DEFINITIVELY KNOWN UNTIL THE FIRST STEP PROPOSALS WERE EVALUATED. CONSEQUENTLY, WE CANNOT SAY THAT THE CONTRACTING OFFICER WAS REMISS IN NOT ADVISING OF THE BOND REQUIREMENT PRIOR TO THAT TIME.

ACCORDINGLY, YOUR PROTEST IS DENIED.