B-180064, APR 4, 1975

B-180064, APR 4, 1975

PRIOR DECISION HOLDING THAT AWARD COULD BE MADE TO BIDDER ON READVERTISEMENT WHO DID NOT POSSESS CERTIFICATE OF MARINE CORPS APPROVAL REQUIRED BY IFB IS AFFIRMED SINCE INCLUSION OF CERTIFICATE IN IFB DID NOT HAVE ADVERSE EFFECT ON COMPETITION AND SOLICITATION OF COMPETITION FOR THIRD TIME WOULD BE MEANINGLESS EXERCISE.

WEINTRAUB BROTHERS COMPANY:

WEINTRAUB BROTHERS COMPANY HAS REQUESTED RECONSIDERATION OF OUR DECISION IN THE MATTER OF WEINTRAUB BROTHERS COMPANY; S. ABRAHAMS & CO., INC., B- 180064, JANUARY 17, 1975. IN THE DECISION WE DENIED WEINTRAUB'S PROTEST AGAINST THE AWARD OF A CONTRACT TO FECHHEIMER BROTHERS CO. UNDER INVITATION FOR BIDS (IFB) NO. INV-3000-4-0123 ISSUED BY THE NATIONAL PARK SERVICE (NPS).

THIS PROCUREMENT IS FOR SUPPLYING UNIFORMS FOR THE UNITED STATES PARK POLICE AND IS THE SAME ONE CONSIDERED BY OUR OFFICE IN THE MATTER OF S. ABRAHAMS & CO., INC., B-180064, MAY 10, 1974. THAT DECISION INVOLVED A PROPOSAL OF NPS TO CANCEL THE IFB THERE (NO. INV-3000-4-0035) BECAUSE IT CONTAINED AN UNNECESSARY REQUIREMENT THAT BIDDERS ATTACH TO THEIR BIDS A CERTIFICATE OF MARINE CORPS APPROVAL OF MANUFACTURER. THE DECISION HELD THAT SINCE THERE WAS NO REASONABLE BASIS TO CONCLUDE THAT THERE WAS AN ADVERSE EFFECT ON COMPETITION BY INCLUSION OF THE CLAUSE AND TWO OF THE THREE BIDS SUBMITTED WERE NONRESPONSIVE NOTWITHSTANDING THE APPROVAL REQUIREMENT, THE BIDDER COMPLYING WITH ALL THE TERMS OF THE IFB SHOULD BE CONSIDERED FOR AWARD. NPS ATTEMPTED TO IMPLEMENT THE DECISION BUT THE RESPONSIVE BID OF ABRAHAMS HAD EXPIRED AND THE BIDDER REFUSED TO EXTEND THE OFFER. THEREFORE, NPS READVERTISED THE REQUIREMENT UNDER IFB -0123 AND THROUGH ERROR, INCLUDED THE MARINE CORPS APPROVAL REQUIREMENT IN THE NEW IFB.

BEFORE BID OPENING, FECHHEIMER PROTESTED TO OUR OFFICE THE INCLUSION OF THE APPROVAL CLAUSE IN THE IFB. NPS CONSIDERED THE PROTEST MERITORIOUS AND ACCEPTED THE BID OF FECHHEIMER FOR AWARD AFTER WAIVING THE REQUIREMENT FOR THE CERTIFICATE. THIS ACTION PRECIPITATED THE PROTESTS OF WEINTRAUB AND ABRAHAMS AGAINST THE AWARD TO FECHHEIMER, WHICH WAS THE SUBJECT OF OUR JANUARY 17, 1975, DECISION.

ALL BIDDERS UNDER IFB -0123, INCLUDING WEINTRAUB, WERE NONRESPONSIVE FOR TAKING AN EXCEPTION TO THE DELIVERY SCHEDULE EXCEPT FECHHEIMER, WHO DID NOT MEET THE CERTIFICATE REQUIREMENT. OUR OFFICE DENIED THE PROTESTS AND DID NOT OBJECT TO THE AWARD MADE TO FECHHEIMER (1) SINCE ALL BIDDERS WERE ON NOTICE THAT THE REQUIREMENT FOR MARINE CORPS APPROVAL HAD BEEN INCLUDED IN THE IFB THROUGH ERROR BY REASON OF OUR DECISION OF MAY 10, 1974, AND THE NPS REPORT ON THE PROTEST STATING THE REQUIREMENT WAS EXCESSIVE, BOTH OF WHICH WERE FURNISHED TO THE PROTESTERS PRIOR TO THE READVERTISEMENT; AND (2) IN VIEW OF OUR CONCLUSION THAT THE INCLUSION OF THE REQUIREMENT DID NOT HAVE AN ADVERSE EFFECT ON COMPETITION. WE HAVE BEEN ADVISED BY NPS THAT FECHHEIMER DELIVERED THE UNIFORMS ON SCHEDULE, WHICH WERE ACCEPTED AS SATISFACTORY, AND PAYMENT HAS BEEN MADE.

WEINTRAUB HAS NOW REQUESTED RECONSIDERATION OF THIS DECISION CONTENDING THAT THE DECISION DID NOT DEAL WITH THE PRINCIPAL ISSUE RAISED, I.E. WHETHER THE CONTRACTING OFFICER COULD WAIVE THE CERTIFICATE REQUIREMENT? WEINTRAUB ALSO QUESTIONS OUR REASONING THAT, IN VIEW OF THE PROTEST HISTORY, IT WAS ON NOTICE, BEFORE BIDDING, THAT THE CERTIFICATE REQUIREMENT HAD BEEN INCLUDED IN IFB -0123 THROUGH ERROR.

WHILE OUR OFFICE USED THE "NOTICE" MATTER TO SUPPORT DENIAL OF THE PROTESTS IN THE JANUARY 17 DECISION, OUR CONCLUSION WAS BOTTOMED MAINLY ON THE FAILURE OF THE RECORD TO DISCLOSE THAT THE INCLUSION OF THE REQUIREMENT ADVERSELY AFFECTED COMPETITION.

WE CONTINUE TO BE OF THE OPINION THAT COMPETITION WAS NOT ADVERSELY AFFECTED OR ANY BIDDER PREJUDICED BY THE INCLUSION OF THE CERTIFICATE REQUIREMENT IN IFB -0123. MOREOVER, THE ALTERNATIVE TO WAIVING THE REQUIREMENT FOR FECHHEIMER WOULD HAVE BEEN ANOTHER CANCELLATION OF AN IFB AND THE SOLICITATION OF COMPETITION FOR A THIRD TIME BECAUSE, AS MENTIONED ABOVE, THE OTHER THREE BIDDERS WERE NONRESPONSIVE BY THEIR TAKING EXCEPTION TO THE DELIVERY SCHEDULE.

WE FAIL TO SEE HOW A READVERTISEMENT DELETING THE REQUIREMENT WOULD BE ANYTHING OTHER THAN A MEANINGLESS EXERCISE BECAUSE, BIDDERS, INCLUDING WEINTRAUB, WOULD BE BIDDING WITHOUT REGARD TO THE CERTIFICATE. FURTHER, FECHHEIMER OBTAINED NO UNDUE ADVANTAGE OVER OTHER BIDDERS BY FAILING TO HAVE THE CERTIFICATE, AS NPS STATED IN ITS REPORT TO OUR OFFICE ON THE INITIAL PROTEST, THAT:

"1. THE SPECIFICATIONS WITHOUT THE REQUIREMENT FOR THE MARINE CORPS CERTIFICATION OR MARINE CORPS SEAL ON THE CLOTH WERE VERY DETAILED AND COMPLETELY ADEQUATE TO INSURE THE RECEIPT OF HIGH QUALITY UNIFORMS MEETING THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT."

THEREFORE, FECHHEIMER, WHILE NOT POSSESSING THE CERTIFICATE, WAS STILL BOUND BY THE SPECIFICATIONS CONTAINED IN THE IFB TO FURNISH THE MINIMUM NEEDS OF THE GOVERNMENT.

IN VIEW OF THE FOREGOING, OUR PRIOR DECISION IS AFFIRMED.