B-159594, SEP. 9, 1966

B-159594, SEP. 9, 1966

TO INTERNATIONAL COMMODITIES EXPORT CORPORATION:

FURTHER REFERENCES IS MADE TO YOUR TELEGRAMS OF JUNE 30 AND JULY 8,1966, AND LETTER OF AUGUST 10, 1966, IN WHICH YOU PROTEST THE AWARD OF A CONTRACT PURSUANT TO REQUEST FOR PROPOSALS NO. FPNGC-R-57272-N-6-2 66. THIS RFP WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, PROCUREMENT OPERATIONS DIVISION, FOR THE PROCUREMENT OF SPECIFIED QUANTITIES OF FERTILIZER. ON PAGE 9 OF THE RFP IT WAS STATED:

"FERTILIZER, MIXED, (20-20-15) WITH A RATIO OF 4-4-3 (N-P205-K20) NO NITRATES, AS FOLLOWS: * * *.'

THE RFP SPECIFIED THAT THE FERTILIZER COULD BE EITHER A CHEMICAL BLEND OR A MECHANICAL BLEND. UNDER EACH BLEND THE RFP INDICATED THE VARIOUS COMPONENTS OF THE FERTILIZER AND FURTHER INDICATED THAT THE NITROGEN, PHOSPHORUS, AND POTASSIUM CONTENT COULD EACH HAVE A VARIABLE FACTOR OF PLUS OR MINUS "0.5" PERCENT. THE RFP PROVIDED A BLANK LINE UNDER EACH BLEND DESCRIPTION FOR THE OFFEROR TO INDICATE THE MIXTURE OFFERED.

THE "BASIS OF AWARD" ON PAGE 6 OF THE RFP WAS STATED TO BE AS FOLLOWS:

"ALTHOUGH BID PRICES ARE REQUIRED F.A.S. VESSEL, U.S. PORT OF SHIPMENT, BIDS WILL BE EVALUATED AND AWARDS MADE ON THE BASIS OF THE LOWEST LANDED COST TO DESTINATION. (SEE PARAGRAPH 10, GSA FORM 1246, SEPTEMBER 1964 EDITION, WHICH IS INCORPORATED HEREIN.) IN ADDITION BIDS WILL BE EVALUATED AND AWARDS MADE ON THE BASIS OF TOTAL PLANT FOOD NUTRIENT CONTENT.'

PURSUANT TO THIS SOLICITATION, 14 OFFERS WERE RECEIVED. SEVEN OFFERS INCLUDING YOURS, QUOTED ON A 20-20-15 ANALYSIS OF THE FERTILIZER. THE OTHER SEVEN QUOTED ON AN ANALYSIS OTHER THAN 20-20-15, AND IN THIS CONNECTION EACH OF THESE SEVEN OFFERED AN ANALYSIS WHICH WAS ABOVE THE MAXIMUM 0.5 PERCENT RANGE INDICATED IN THE RFP. OFFERS WERE EVALUATED IN ACCORDANCE WITH THE ,BASIS FOR AWARD" PROVISION, QUOTED ABOVE, AND WHILE YOUR OFFER WAS LOW FOR THE 20-20-15 ANALYSIS, INTERNATIONAL MINERALS AND CHEMICAL CORPORATION WAS THE LOWEST OFFER RECEIVED WHEN EVALUATED ON THE BASIS OF TOTAL NUTRIENT CONTENT. INTERNATIONAL MINERALS ALSO SUBMITTED AN OFFER ON THE 20-20-15 MIX. A CONTRACT FOR THE INSTANT PROCUREMENT BASED ON A 21-21-15.75 MIXTURE WAS AWARDED TO INTERNATIONAL MINERALS ON JUNE 24, 1966.

THE INSTANT PROCUREMENT WAS NEGOTIATED PURSUANT TO 41 U.S.C. 252/C) (15), AND 22 U.S.C. 2393, AS IMPLEMENTED BY EXECUTIVE ORDER 10784, OCTOBER 1, 1958, AS AMENDED.

IT IS GSA'S POSITION THAT THE PROVISION IN THE SOLICITATION WHICH SPECIFIED A MIXTURE OF 20-20-15 WITH A VARIANCE OF PLUS OR MINUS 0.5 PERCENT WAS AN ERROR AND THAT THE VARIANCE SHOULD HAVE BEEN PLUS OR MINUS 5 PERCENT. ALSO, THAT THE NUMBER OF OFFERORS WHO QUOTED ON MIXTURES WHICH WERE ABOVE THE SPECIFIED 0.5 PERCENT VARIANCE INDICATED THAT INDUSTRY GENERALLY WAS AWARE THAT THE 0.5 PERCENT VARIANCE QUOTED IN THE RFP SHOULD HAVE BEEN 5 PERCENT.

GSA HAS ADVISED THAT UPON RECEIPT OF YOUR PROTEST THEY REQUESTED INTERNATIONAL MINERALS TO AGREE TO A NO-COST TERMINATION WHICH INTERNATIONAL MINERALS REFUSED TO DO, SINCE IT HAD PLACED FIRM ORDERS WITH ITS SUPPLIERS AND HAD COMMENCED PRODUCTION. IN THESE CIRCUMSTANCES GSA DETERMINED THAT THE AWARD TO INTERNATIONAL MINERALS SHOULD NOT BE CANCELLED. YOU HAVE PROTESTED THIS DETERMINATION.

THE GENERAL RULE IS THAT IN NEGOTIATED PROCUREMENTS THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING ARE NOT APPLICABLE AND THAT THE NEGOTIATING AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PROCUREMENT. SEE B-157170, SEPTEMBER 9, 1965, WHICH CITES 40 COMP. GEN. 508.

IT IS OUR VIEW THAT THE RFP SHOULD HAVE MORE ACCURATELY SET FORTH THE GOVERNMENT'S REQUIREMENTS AND THAT ALL PROSPECTIVE SUPPLIERS SHOULD HAVE BEEN ADVISED AS TO THE MIXTURE WHICH WOULD BE ACCEPTABLE TO GSA. HOWEVER, WE HAVE NO BASIS FOR FINDING THAT THE AWARD TO INTERNATIONAL MINERALS WAS INVALID. GSA HAS ADVISED THAT A REVIEW IS BEING MADE OF FERTILIZER PROCUREMENTS AND THAT NEW PROVISIONS ARE BEING DEVELOPED WHICH WILL ACCURATELY SET FORTH THE GOVERNMENT'S REQUIREMENTS IN FUTURE PROCUREMENTS.

ACCORDINGLY, WE DO NOT THINK IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DISTURB THE AWARD TO INTERNATIONAL MINERALS AND YOUR REQUEST FOR A CANCELLATION IS THEREFORE DENIED.