B-176439, NOV 20, 1972

B-176439, NOV 20, 1972

BID PROTEST - CHANGE IN REQUIREMENTS - READVERTISEMENT DECISION DENYING THE PROTEST OF AREA-WIDE SERVICE CO., INC., AGAINST CANCELLATION OF AN IFB ISSUED BY GSA FOR RUBBISH REMOVAL SERVICES AT THE FEDERAL CENTER, FT. WORTH, TEXAS AND READVERTISEMENT FOR THE SAME SERVICES UNDER A NEW IFB. WHERE MATERIAL CHANGES ARE MADE IN THE REQUIREMENTS OF AN IFB AFTER BID OPENING BUT PRIOR TO AWARD, THEN THE ONLY PROPER WAY TO DETERMINE THE LOWEST BIDDER IS TO READVERTISE IN A NEW IFB THE ACTUAL WORK TO BE PERFORMED. 17 COMP. GEN. 427 (1937). IT WOULD BE IMPROPER UNDER SUCH CIRCUMSTANCES TO NEGOTIATE THESE CHANGES WITH THE LOW BIDDER OF THE PREVIOUS IFB, SINCE IN THAT CASE THE CONTRACT AWARDED WOULD NOT BE THE CONTRACT ADVERTISED. 49 COMP. GEN. 584 (1970).

TO AREA-WIDE SERVICE CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1972, PROTESTING THE CANCELLATION OF GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BIDS (IFB) NO. GS-07B-8358 AND THE READVERTISEMENT UNDER IFB NO. GS-07B 8358- 1.

AREA-WIDE SERVICE CO. (AREA-WIDE) HAD BEEN AWARDED THE PRIOR CONTRACT, GS -07B-8256, FOR RUBBISH REMOVAL SERVICES AT THE FEDERAL CENTER, FORT WORTH, TEXAS FOR THE PERIOD AUGUST 1, 1971 THROUGH JULY 31, 1972. THAT CONTRACT REQUIRED AREA-WIDE TO FURNISH ALL LABOR, MATERIALS, AND NECESSARY EQUIPMENT INCLUDING CONTAINERS TOTALLING 309 CUBIC YARDS OF CONTAINER SPACE. IFB NO. GS-07B-8358, ISSUED ON MAY 19, 1972, WAS FOR RUBBISH REMOVAL SERVICES AT THE FEDERAL CENTER FOR THE PERIOD AUGUST 1, 1972 THROUGH JULY 31, 1973. PRIOR TO THE ISSUANCE OF THAT SOLICITATION, A SURVEY OF THE FACILITIES, BASED ON THE ASSUMPTION THAT AREA-WIDE WAS PROVIDING THE CONTAINERS AS SPECIFIED UNDER CONTRACT NO. GS-07B-8256, HAD INDICATED THAT THE CONTAINERS WERE INSUFFICIENT FOR THE AMOUNT OF RUBBISH GENERATED. IT WAS FOR THIS REASON THAT IFB NO. GS-07B-8358 SPECIFIED THAT THE CONTRACTOR WOULD BE REQUIRED TO FURNISH 383 CUBIC YARDS OF CONTAINER SPACE, AN INCREASE OF 74 CUBIC YARDS.

ON JUNE 6, 1972, THE BIDS ON IFB NO. GS-07B-8358 WERE OPENED. AREA WIDE SUBMITTED THE LOWEST BID OF THE THREE RECEIVED. ON JUNE 7, 1972, A REPRESENTATIVE OF ESTES SERVICE CO., INC., THE SECOND LOW BIDDER, ADVISED THE CONTRACTING OFFICER THAT AREA-WIDE HAD NOT BEEN FURNISHING THE SIZE CONTAINERS SPECIFIED IN THE PRIOR CONTRACT (NO. GS-07B-8256). SUBSEQUENTLY, THE CONTRACTING OFFICER REQUESTED A DETAILED SURVEY OF THE CONTAINERS BEING USED BY THE CONTRACTOR, THE SURVEY, INVOLVING PHYSICAL MEASUREMENT OF ALL CONTAINERS, SHOWED THAT AREA-WIDE WAS FURNISHING ONLY 239.35 CUBIC YARDS RATHER THAN THE 309 CUBIC YARDS OF CONTAINER SPACE SPECIFIED IN THE CONTRACT, RESULTING IN A SHORTAGE OF 69.95 CUBIC YARDS.

MOREOVER, THE SURVEY REVEALED THAT THE ACTUAL REQUIREMENTS OF THE GOVERNMENT WAS 290 CUBIC YARDS, 93 CUBIC YARDS LESS THAN THE 383 CUBIC YARDS SPECIFIED IN IFB NO. GS-07B-8358. PURSUANT TO THE FINDINGS OF THIS SURVEY, IT WAS DETERMINED THAT THE SPECIFICATION UNDER IFB NO. GS 07B-8358 WAS NOT REPRESENTATIVE OF THE GOVERNMENT'S NEEDS. CONSEQUENTLY, ON JUNE 15, 1972, THE CONTRACTING OFFICER CANCELED THE SOLICITATION IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1 2.404-1(B)(1) AND (4). THE NEW IFB, GS-07B-8358-1, WAS ISSUED ON JUNE 22, 1972, AND THE BIDS WERE OPENED ON JULY 13, 1972. FOUR BIDS WERE RECEIVED WITH AREA-WIDE BEING THE HIGH BIDDER.

IN THE JULY 6, 1972, LETTER YOU CONTENDED THAT INSTEAD OF CANCELING THE IFB AND READVERTISING THE PROCUREMENT, THE CONTRACTING OFFICER SHOULD HAVE NEGOTIATED THE CHANGES WITH YOU.

HOWEVER, TO HAVE NEGOTIATED THE CHANGES WITH YOU AND THEN AWARDED YOU THE CONTRACT WOULD HAVE BEEN IMPROPER SINCE THE CONTRACT AWARDED WOULD NOT HAVE BEEN THE CONTRACT ADVERTISED. 49 COMP. GEN. 584 (1970). IN THAT REGARD, IN B-145109, MAY 1, 1961, IT WAS STATED:

"*** THE ONLY PROPER WAY TO DETERMINE THE LOWEST BIDDER IS BY ADVERTISING THE ACTUAL WORK TO BE PERFORMED, AND THIS, IN OUR OPINION, IS WHAT THE LAW REQUIRES. 17 COMP. GEN. 427, 430 (1937); 15 ID. 573, 576 (1935). SEE ALSO 37 COMP. GEN. 183, 184 (1957). THE ADOPTION OF ANY OTHER VIEW WOULD PERMIT CIRCUMVENTION OF THE COMPETITIVE BID REQUIREMENT AND WOULD BE CONTRARY TO THE INTENT OF THE PROCUREMENT STATUTES."

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.