B-209158, NOV 19, 1982

B-209158, NOV 19, 1982

DIGEST: WHERE PROTESTER DID NOT SUBMIT BID BECAUSE IT RECEIVED SOLICITATION ONLY 2 DAYS BEFORE BID OPENING, BIDS NEED NOT BE RESOLICITED SINCE THERE WAS A SIGNIFICANT EFFORT TO OBTAIN COMPETITION, BID PRICES WERE REASONABLE, AND THERE WAS NO DELIBERATE ATTEMPT TO PRECLUDE PROTESTER FROM BIDDING.

ALLSTATE FLOORING COMPANY, INC.:

ALLSTATE FLOORING COMPANY, INC. (ALLSTATE), PROTESTS ANY AWARD BY THE DEPARTMENT OF TRANSPORTATION, UNITED STATES COAST GUARD (COAST GUARD), UNDER INVITATION FOR BIDS (IFB) NO. DTCG26-82-B-00721. THE PROTESTER CONTENDS THAT THE COAST GUARD SHOULD RESOLICIT BIDS BECAUSE IT FAILED TO ACHIEVE ADEQUATE COMPETITION AND REASONABLE PRICES.

THE PROTEST IS DENIED.

ALLSTATE REQUESTED A COPY OF THE SOLICITATION IN AN AUGUST 9, 1982, LETTER. THE COAST GUARD RECEIVED THE REQUEST ON AUGUST 16. SOLICITATIONS WERE AVAILABLE AT THAT TIME BECAUSE THE COAST GUARD HAD ALREADY EXHAUSTED ITS SUPPLY OF 40 SOLICITATIONS. ADDITIONAL SOLICITATIONS WERE PREPARED AND SENT TO ALLSTATE, AND OTHER REQUESTERS, ON AUGUST 31. ALL TOGETHER, 60 SOLICITATIONS WERE SENT TO POTENTIAL BIDDERS BY AUGUST 31.

THREE BIDS WERE SUBMITTED AT THE SEPTEMBER 9 BID OPENING. THE THREE BIDS AND THE COAST GUARD'S ESTIMATE WERE:

COAST GUARD ESTIMATE - $ 884,000

PLACEWAY CONSTRUCTION - 680,000

GAIGANO AND GAIGANO - 846,870

BRITELITE - 109,072,000

ALLSTATE CLAIMS IT DID NOT HAVE TIME TO PREPARE AND SUBMIT A BID BECAUSE IT RECEIVED A COPY OF THE SOLICITATION ON SEPTEMBER 7, 2 DAYS BEFORE BID OPENING.

OUR OFFICE HAS REPEATEDLY HELD THAT UNLESS THERE IS EVIDENCE OF A CONSCIOUS OR DELIBERATE EFFORT TO EXCLUDE A BIDDER FROM PARTICIPATING IN THE COMPETITION, WE WILL NOT REQUIRE A PROCURING AGENCY TO RESOLICIT BIDS WHERE ADEQUATE COMPETITION RESULTED IN REASONABLE PRICES. ONTARIO KNIFE COMPANY, B-205142, FEBRUARY 10, 1982, 82-1 CPD 125.

WE INITIALLY NOTE THAT ALLSTATE WAS NOT DELIBERATELY EXCLUDED FROM THE COMPETITION. ALTHOUGH ALLSTATE DID NOT RECEIVE THE SOLICITATION UNTIL SEPTEMBER 7, THERE IS NO EVIDENCE THAT THIS WAS DUE TO A DELIBERATE ATTEMPT TO EXCLUDE ALLSTATE, BUT RATHER TO THE UNAVAILABILITY OF ADDITIONAL SOLICITATIONS UNTIL AUGUST 31 AND, APPARENTLY, THE DISTANCE THE SOLICITATION HAD TO TRAVEL FROM THE CONTRACTING OFFICE IN NEW YORK TO ALLSTATE IN COLORADO, AND THE FACT THAT THE POST OFFICE DID NOT DELIVER MAIL ON SUNDAY, SEPTEMBER 5, AND LABOR DAY, SEPTEMBER 6.

ALLSTATE HAS NOT SHOWN THAT THE COAST GUARD RECEIVED INADEQUATE COMPETITION. FORTY PROSPECTIVE BIDDERS WERE SOLICITED AS OF AUGUST 16, AND 20 MORE AS OF AUGUST 31. ALTHOUGH ONLY THREE BIDDERS SUBMITTED BIDS, IN VIEW OF THE NUMBER OF PROSPECTIVE BIDDERS SOLICITED, WE CANNOT SAY THAT THERE WAS INADEQUATE COMPETITION. SEE GENERAL AERO PRODUCTS CORPORATION, B-191870, JULY 25, 1978, 78-2 CPD 70; WITCHITA BEVERAGE, INC., D/B/A PEPSI -COLA AND SEVEN-UP BOTTLING COMPANY, B-191205, JULY 6, 1978, 78-2 CPD 11.

ALLSTATE HAS NOT SHOWN THAT THE COMPETITION DID NOT RESULT IN REASONABLE PRICES. PLACEWAY CONSTRUCTION'S LOW BID OF $680,000 WAS OVER $200,000 LOWER THAN THE COAST GUARD'S ESTIMATE OF $884,000. ALLSTATE ARGUES THAT ALTHOUGH PLACEWAY CONSTRUCTION'S BID LOOKED GOOD IN COMPARISON TO THE COAST GUARD'S ESTIMATE, THE ESTIMATE WAS UNREASONABLY HIGH. ALLSTATE STATES, "FROM OUR EXPERIENCE, BIDDING ON SIMILAR PROJECTS, WE WOULD GUESS THAT THE PRICE RECEIVED AS A LOW BID APPEARS TO BE ROUGHLY TWENTY (20) PERCENT HIGHER THAN MIGHT HAVE BEEN ACHIEVED WITH REAL COMPETITION."

THE DETERMINATION OF PRICE REASONABLENESS IS ONE OF BUSINESS JUDGMENT REQUIRING THE EXERCISE OF BROAD DISCRETION. RELIABLE ELEVATOR CORP., B-191061, APRIL 27, 1978, 78-1 CPD 330; FALCON RULE COMPANY AAKRON RULE CORPORATION, B-187024, NOVEMBER 16, 1976, 76-2 CPD 418. THEREFORE, OUR OFFICE WILL NOT INTERFERE ABSENT A SHOWING OF A CLEAR ABUSE OF DISCRETION. ID. ALLSTATE'S SPECULATIVE GUESSES DO NOT CONSTITUTE A SHOWING OF ABUSE OF DISCRETION BY THE CONTRACTING OFFICER.

ACCORDINGLY, THE PROTEST IS DENIED.