B-143327, JUN. 30, 1960

B-143327: Jun 30, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WELFARE: REFERENCE IS MADE TO LETTER OF JUNE 24. REQUESTING A DECISION AS TO WHETHER THE CONTRACT AWARDED FOR PEST CONTROL SERVICES FOR FISCAL YEAR 1961 UNDER INVITATION PHS-12-61 SHOULD BE CANCELLED BECAUSE THE CURRENT CONTRACTOR WAS NOT FURNISHED AN INVITATION TO BID DUE TO AN UNINTENTIONAL OVERSIGHT AT THE TIME INVITATIONS WERE MAILED OUT. ALTHOUGH HE WAS PLACED ON CONSTRUCTIVE NOTICE OF THE PROCUREMENT BY THE POSTING OF AN INVITATION IN A POST OFFICE BUILDING. OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 PROVIDES THAT WHEN ADVERTISING IS REQUIRED THE "INVITATION FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED.'.

B-143327, JUN. 30, 1960

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

REFERENCE IS MADE TO LETTER OF JUNE 24, 1960, FROM THE ACTING CHIEF, DIVISION OF ADMINISTRATIVE SERVICES, OFFICE OF THE SURGEON GENERAL, PUBLIC HEALTH SERVICE, REQUESTING A DECISION AS TO WHETHER THE CONTRACT AWARDED FOR PEST CONTROL SERVICES FOR FISCAL YEAR 1961 UNDER INVITATION PHS-12-61 SHOULD BE CANCELLED BECAUSE THE CURRENT CONTRACTOR WAS NOT FURNISHED AN INVITATION TO BID DUE TO AN UNINTENTIONAL OVERSIGHT AT THE TIME INVITATIONS WERE MAILED OUT, ALTHOUGH HE WAS PLACED ON CONSTRUCTIVE NOTICE OF THE PROCUREMENT BY THE POSTING OF AN INVITATION IN A POST OFFICE BUILDING.

SECTION 303 (A), TITLE III, OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 PROVIDES THAT WHEN ADVERTISING IS REQUIRED THE "INVITATION FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED.' THIS REQUIREMENT, WHICH IS APPLICABLE TO YOUR DEPARTMENT AS A RESULT OF THE GENERAL DELEGATION TO EXECUTIVE AGENCIES OF AUTHORITY TO USE TITLE III OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (SEE PART I OF FEDERAL REGISTER FOR MARCH 17, 1959, 24 F.R. 1921), WAS DESIGNED TO OBTAIN FOR THE GOVERNMENT THE MOST ADVANTAGEOUS PRICES RESULTING FROM THE WIDEST COMPETITION REASONABLE UNDER THE CIRCUMSTANCES OF THE PARTICULAR PROCUREMENT AND TO AFFORD ALL INTERESTED PARTIES AN EQUAL OPPORTUNITY TO COMPETE FOR THE PROCUREMENT.

IN B-130094, MARCH 8, 1957, WE CONSIDERED A CASE WHERE THE GENERAL SERVICES ADMINISTRATION DID NOT MAIL INVITATIONS FOR BIDS TO ANY FIRMS ON THE AGENCY'S MAILING LIST BECAUSE OF A MALFUNCTION IN THE ADDRESSING MACHINE, ALTHOUGH IT DID FURNISH PUBLIC NOTICE OF THE PROCUREMENT THROUGH OTHER MEDIA. THE ADMINISTRATOR OF GENERAL SERVICES REASONED THAT THERE WAS A FAILURE OF THE AGENCY TO CARRY OUT ITS RESPONSIBILITIES UNDER SECTION 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT IN VIEW OF THE LACK OF ACTUAL NOTICE TO FIRMS WHICH NORMALLY BID ON THE PARTICULAR REQUIREMENT AND THAT THERE WAS NO ALTERNATIVE BUT TO READVERTISE. CITING 14 COMP. GEN. 667 AND 25 ID. 859, WE CONCURRED WITH THE VIEW OF THE ADMINISTRATOR, POINTING OUT THAT, AS A GENERAL RULE, UNRESTRICTED COMPETITION CAN ONLY BE OBTAINED BY ADVERTISING IN SUCH A MANNER AS TO ASSURE THAT ALL QUALIFIED BIDDERS WHO ARE INTERESTED IN SUBMITTING A BID MAY BE ADVISED OF THE CONTEMPLATED PROCUREMENT.

CONSISTENT WITH THAT RULE, WE THINK THAT THE FAILURE TO SOLICIT A BID FROM THE COMPANY PERFORMING THE CURRENT CONTRACT FOR THE PEST CONTROL SERVICES INVOLVED IN THE SAME MANNER AS BIDS WERE SOLICITED FROM FIVE OTHER COMPETING COMPANIES CONSTITUTED A FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENT FOR "FULL" COMPETITION.

IT HAS LONG BEEN ESTABLISHED THAT, IN THE ABSENCE OF ANY EXIGENCY, PUBLIC ADVERTISING STATUTES ARE MANDATORY AND CONTRACTS MADE IN VIOLATION THEREOF ARE VOID. SCHNEIDER V. UNITED STATES, 19 C.CLS. 547. SEE ALSO CLARK V. UNITED STATES, 95 U.S. 539; AND UNITED STATES V. SPEED, 18 WALL. 77.

WE THEREFORE MUST CONCLUDE THAT CANCELLATION OF THE CONTRACT AWARDED UNDER INVITATION PHS-12-61 ..END :