B-150565, MAY 10, 1963

B-150565: May 10, 1963

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TO HOGAN AND HARTSON: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. THE VAPOR CORPORATION REQUESTED THAT ALL BIDS BE REJECTED AND THE PROCUREMENT READVERTISED BECAUSE THE VAPOR CORPORATION WAS NOT SENT A COPY OF THE INVITATION. IT WAS ALLEGED THAT THE CORPORATION CONTRIBUTED TO THE WRITING OF THE NEW MILITARY SPECIFICATION AND WAS PROMISED BY THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORY. THE PROCUREMENT OFFICE HAS EXPRESSED ITS REGRETS THAT A BID INVITATION WAS NOT MAILED TO THE VAPOR CORPORATION. WHICH IS ATTRIBUTED TO AN OVERSIGHT BY FAILING TO NOTE THAT THE NAME OF THE VAPOR CORPORATION IS LISTED AS A SUPPLIER OF ASPHALT AND OIL HEATERS IN THE THOMAS REGISTER OF AMERICAN MANUFACTURERS.

B-150565, MAY 10, 1963

TO HOGAN AND HARTSON:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1963, AND PRIOR CORRESPONDENCE, CONCERNING THE PROTEST OF THE VAPOR CORPORATION, CHICAGO, ILLINOIS, AGAINST THE MAKING OF A CONTRACT AWARD UNDER INVITATION FOR BIDS NO. ENG-11-184-62-B-742, ISSUED JUNE 29, 1962, BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, COVERING A PROPOSED PURCHASE OF 54 TRAILER- MOUNTED HOT OIL HEATERS MEETING THE REQUIREMENTS OF MILITARY SPECIFICATION MIL-H-52213 (CE) DATED FEBRUARY 27, 1962, EXCEPT AS MODIFIED BY THE TERMS OF THE INVITATION.

THE VAPOR CORPORATION REQUESTED THAT ALL BIDS BE REJECTED AND THE PROCUREMENT READVERTISED BECAUSE THE VAPOR CORPORATION WAS NOT SENT A COPY OF THE INVITATION. IT WAS ALLEGED THAT THE CORPORATION CONTRIBUTED TO THE WRITING OF THE NEW MILITARY SPECIFICATION AND WAS PROMISED BY THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORY, FORT BELVOIR, VIRGINIA, THAT ITS NAME WOULD BE PLACED ON THE BIDDERS' MAILING LIST.

THE PROCUREMENT OFFICE HAS EXPRESSED ITS REGRETS THAT A BID INVITATION WAS NOT MAILED TO THE VAPOR CORPORATION, WHICH IS ATTRIBUTED TO AN OVERSIGHT BY FAILING TO NOTE THAT THE NAME OF THE VAPOR CORPORATION IS LISTED AS A SUPPLIER OF ASPHALT AND OIL HEATERS IN THE THOMAS REGISTER OF AMERICAN MANUFACTURERS, ONE OF THE THREE SOURCES USED IN THE DEVELOPMENT OF A BIDDERS' MAILING LIST OF APPROXIMATELY 90 NAMES. HOWEVER, IT WAS DETERMINED THAT THE VAPOR CORPORATION'S CONTRIBUTION TO THE WRITING OF THE NEW MILITARY SPECIFICATION CONSISTED ONLY IN ANSWERING A QUESTIONNAIRE SENT TO INDUSTRY AND THAT THERE WAS NO BASIS FOR THE ALLEGATION THAT THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORY PROMISED THE VAPOR CORPORATION THAT ITS NAME WOULD BE PLACED ON THE BIDDERS' MAILING LIST FOR THE ITEM INVOLVED. THE CORPORATION NO LONGER MAINTAINS THAT IT WAS GIVEN ANY COMMITMENT BY THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORY BUT ALLEGES THAT, UPON THE RECOMMENDATION OF THE LABORATORY, A SPECIAL TRIP WAS MADE TO THE CHICAGO PROCUREMENT OFFICE AND THE MATTER OF PLACING THE CORPORATION'S NAME ON THE MAILING LIST WAS DISCUSSED WITH THE PROCUREMENT OFFICIALS.

WE NOTE THAT IN JULY 1961 THE CORPORATION EXECUTED A STANDARD BIDDER'S MAILING LIST APPLICATION BUT AT SUCH TIME THE CORPORATION COULD NOT HAVE SHOWN ITS INTEREST IN THE SPECIFIC ITEM BECAUSE THERE HAD NOT THEN BEEN ESTABLISHED A FEDERAL CLASSIFICATION FOR THE TYPE OF HEATER WHICH THE GOVERNMENT PROPOSED TO PURCHASE UNDER A CONTRACT TO BE AWARDED PURSUANT TO THE INVITATION OF JUNE 29, 1962, AS AMENDED. ASSUMING THAT THE ALLEGED DISCUSSION TOOK PLACE AFTER ISSUANCE OF THE NEW MILITARY SPECIFICATION INSTEAD OF IN JULY 1961, IT WOULD NOT APPEAR THAT SUCH CIRCUMSTANCE PROPERLY COULD BE REGARDED AS INDICATING THAT THE PROCUREMENT OFFICIALS INTENDED TO PRECLUDE THE VAPOR CORPORATION FROM BIDDING ON AN ITEM WHICH WOULD MEET THE REQUIREMENTS OF THE NEW MILITARY SPECIFICATION.

THE DEPARTMENT OF THE ARMY CONSIDERS THAT THE DECISION NOT TO READVERTISE FOR BIDS WAS PROPER, INASMUCH AS THE REGULATIONS APPLICABLE TO FORMAL ADVERTISING AND PUBLICIZING OF PROCUREMENT ACTION WERE COMPLIED WITH, THE OMISSION OF THE NAME OF THE VAPOR CORPORATION FROM THE BIDDERS' MAILING LIST WAS UNINTENTIONAL AND, AS STATED IN 34 COMP. GEN. 684, THERE IS NO REQUIREMENT THAT ALL BIDS BE REJECTED AND THE NEEDS OF THE GOVERNMENT READVERTISED MERELY BECAUSE OF A FAILURE TO FURNISH A BIDDER WITH A COPY OF AN INVITATION.

YOU HAVE RAISED THE QUESTION AS TO WHETHER THE REQUIREMENT FOR PUBLICIZING THE PROCUREMENT ACTION WAS COMPLIED WITH BY THE NOTICE PUBLISHED ON MAY 29, 1962, IN THE COMMERCE BUSINESS DAILY (ISSUE NO. PSA- 3059), WHICH READS AS FOLLOWS:

"U.S. ARMY ENGINEER PROCUREMENT OFFICE,

CHICAGO CORPS OF ENGINEERS, 226 W. JACKSON BLVD.,

CHICAGO 6, ILL.

"REQUESTS FOR IFB SHOULD BE SENT WITHIN 10 DAYS FROM DATE OF THIS SYNOPSIS TO COMMANDING OFFICER, U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO CORPS OF ENGINEERS, 226 W. JACKSON BLVD., CHICAGO 6, ILL. ATTN: EPOC-7.2L.

"PRE-INVITATION NOTICE

"*HEATER, HOT OIL, TRAILER MOUNTED, 1750000 BTU/HR OUTPUT WITHOUT GENERATOR OIL FIRED AND ELECTRIC-DRIVEN, MIL SPEC MIL-H-52213 (CE) (QPL) DTD 27 FEB 62--- 54 EA--- THE ISSUE AND OPENING DATES OF THE INVITATION HAVE NOT BEEN SCHEDULED (000C-23195-0000-2108-0929)"

SUBSECTION 1-1003.6 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), PROVIDES AS FOLLOWS:

"WHERE PRE-INVITATION NOTICES (2-205.4) ARE USED, THE PRE-INVITATION INFORMATION SHALL BE INCLUDED IN THE SYNOPSIS. THIS INFORMATION NEED NOT BE RE-PUBLISHED IN THE SYNOPSIS WHEN THE INVITATION FOR BIDS IS ISSUED.'

YOU CONTEND THAT THE NOTICE OF THE PROPOSED PROCUREMENT ACTION SHOULD HAVE BEEN RE-PUBLISHED AS OF JUNE 29, 1962, WHEN THE INVITATION FOR BIDS WAS ISSUED; AND SUGGEST THAT THE USE OF PRE-INVITATION NOTICES MAY NOT HAVE BEEN AUTHORIZED SINCE THE ESTIMATED COST OF THE PROPOSED PROCUREMENT EXCEEDED $600,000.

SUBSECTION 2-205.4, ASPR, HAS REFERENCE TO ACTIONS WHICH MIGHT BE TAKEN IN ORDER TO SAVE ADMINISTRATIVE COSTS IN SITUATIONS WHERE THERE ARE EXCESSIVELY LONG BIDDERS' MAILING LISTS. WITHOUT LIMITING THE AUTHORITY OF A CONTRACTING AGENCY TO USE OTHER METHODS OF REDUCING THE NUMBER OF FIRMS TO BE SENT COPIES OF AN INVITATION AND RELATED DRAWINGS AND SPECIFICATIONS, THE REGULATION APPROVES THE METHOD OF ROTATING MAILING LISTS IN CERTAIN CIRCUMSTANCES AND THE METHOD OF USING PRE INVITATION NOTICES TO ASCERTAIN IN ADVANCE OF MAILING OUT COPIES OF THE INVITATION THE NUMBER OF FIRMS WHICH MAY DESIRE TO OBTAIN COMPLETE BID SETS. PARAGRAPH (C) OF SUBSECTION 2-205.4, IT IS PROVIDED THAT THE PRE- INVITATION NOTICE SHALL SPECIFY THE DATE BY WHICH BIDDERS SHOULD RETURN THE NOTICE IN ORDER TO RECEIVE A COMPLETE BID SET; AND THAT THE NOTICE SHALL DESCRIBE THE REQUIREMENT, OR INCLUDE THE SCHEDULE OF THE INVITATION FOR BIDS, SO AS TO FURNISH AN ITEM DESCRIPTION AND A CONDENSATION OF OTHER ESSENTIAL INFORMATION PROVIDING CONCERNS WITH AN INTELLIGIBLE BASIS FOR JUDGING WHETHER THEY HAVE AN INTEREST IN THE PROCUREMENT.

WITH RESPECT GENERALLY, TO THE MATTER OF PUBLICIZING PROCUREMENT ACTIONS, SUBSECTION 1-1003.9, ASPR, REQUIRES A CONTRACTING AGENCY TO FURNISH THE DEPARTMENT OF COMMERCE A SYNOPSIS OF EACH PROPOSED PROCUREMENT FOR PUBLICATION IN THE COMMERCE BUSINESS DAILY. IN THE CASE OF A PROPOSED PROCUREMENT BY FORMAL ADVERTISING, THE REQUIRED SYNOPSIS CONTAINS A COMPLETE DESCRIPTION OF THE ITEM, THE NUMBER OF THE INVITATION, THE SCHEDULED DATE FOR OPENING OF BIDS AND PLACE OF DELIVERY WHERE THERE ARE NOT MORE THAN 3 DESTINATIONS.

THE FACT THAT THE ESTIMATED COST OF A PARTICULAR PROCUREMENT PROPOSED TO BE EFFECTED BY A CONTRACT AWARDED PURSUANT TO FORMAL ADVERTISING MAY BE RELATIVELY HIGH WOULD NOT IN OUR OPINION PRECLUDE THE CONTRACTING AGENCY FROM USING THE RE-INVITATION METHOD IN AN ATTEMPT TO SAVE ADMINISTRATIVE COSTS IN SOLICITING BIDS. THERE WOULD BE NO SOUND BASIS FOR PREPARING AND MAILING A LARGE NUMBER OF COMPLETE BID SETS TO FIRMS ON AN ESTABLISHED BIDDERS' MAILING LIST WHEN, IN ALL PROBABILITY, MANY OF THOSE FIRMS WOULD NOT BE INTERESTED IN SUBMITTING BIDS.

IT IS ARGUED IN YOUR LETTER OF FEBRUARY 7, 1963, THAT THE PREINVITATION NOTICE PUBLISHED IN THE COMMERCE BUSINESS DAILY WAS LEGALLY DEFECTIVE BECAUSE IT DID NOT SPECIFY THE DATE ON WHICH A BIDDER SHOULD RETURN THE NOTICE IN ORDER TO RECEIVE A COMPLETE BID SET. ON THAT POINT, SUCH REQUIREMENT OF SUBSECTION 2-205.4 IS NOT CONSIDERED TO BE APPLICABLE TO PUBLICIZING OF A PROPOSED PROCUREMENT ACTION IN THE COMMERCE BUSINESS DAILY, BUT ONLY TO PRE-INVITATION NOTICES SENT TO FIRMS ON AN ESTABLISHED BIDDERS' MAILING LIST WHICH IS SOUGHT TO BE REDUCED AT THE TIME OF SOLICITING BIDS IN ORDER TO SAVE ADMINISTRATIVE COSTS.

IT IS FURTHER ARGUED THAT THE PROCUREMENT OFFICE DID NOT PROPERLY INTERPRET SUBSECTION 1-1003.6, ASPR, WHEN IT WAS DETERMINED THAT IT WOULD BE UNNECESSARY TO RE-PUBLISH THE PROPOSED PROCUREMENT ACTION AT THE TIME OF ISSUING THE INVITATION FOR BIDS. YOUR SUGGESTION THAT A RE PUBLICATION WAS REQUIRED IS BASED UPON THE FOLLOWING STATED REASONS:

1.THE WORDS "PRE-INVITATION INFORMATION," AS USED IN THE FIRST SENTENCE OF SUBSECTION 1-1003.6, CAN MEAN ONLY THAT THE INFORMATION DEMANDED BY SUBSECTION 2-205.4 MUST BE PUBLISHED IN THE PRE-INVITATION SYNOPSIS.

2. THE SECOND SENTENCE OF SUBSECTION 1-1003.6 CAN MEAN ONLY THAT WHEN A SECOND SYNOPSIS IS PUBLISHED IT NEED NOT CONTAIN THE PRE INVITATION INFORMATION BUT MUST CONTAIN THE REMAINING INFORMATION WHICH IS REQUIRED IN THE PUBLICATION OF THE USUAL SYNOPSIS IN ACCORDANCE WITH THE REQUIREMENTS OF SUBSECTION 1-1003.9.

3. THE INTERPRETATION OF SUBSECTION 1-003.6 FOR WHICH YOU CONTEND IS CONSISTENT WITH THE GENERAL POLICY OF THE GOVERNMENT TO PROMOTE COMPETITION BY DISSEMINATION OF THE MAXIMUM AMOUNT OF INFORMATION CONSISTENT WITH GOOD ECONOMICS AS MEASURED BY THE DOLLAR VALUE OF A PROPOSED PURCHASE.

THE PRE-INVITATION INFORMATION REFERRED TO IN SUBSECTION 1-1003.6, ASPR, WOULD NORMALLY INCLUDE SUFFICIENT DETAILS WITH RESPECT TO THE PROPOSED PROCUREMENT ACTION WHICH, IN THE WORDS OF SUBSECTION 2-205.4, ASPR, WOULD PROVIDE CONCERNS "WITH AN INTELLIGIBLE BASIS FOR JUDGING WHETHER THEY HAVE AN INTEREST IN THE PROCUREMENT," AND A STATEMENT AS TO THE LIMITING TIME FOR REQUESTING AN INVITATION FOR BIDS. IN STATING IN THE SECOND SENTENCE OF SUBSECTION 1-1003.6 THAT "THIS INFORMATION NEED NOT BE RE-PUBLISHED," ETC., IT IS OUR OPINION THAT THE REGULATION CLEARLY WAS MEANT TO REQUIRE ONLY A SINGLE PUBLICATION WHEN PRE-INVITATION NOTICES ARE USED AND WE ARE ADVISED BY THE DEPARTMENT OF DEFENSE THAT IT HAS NOT BEEN THE PRACTICE OF THE MILITARY DEPARTMENTS TO RE-PUBLISH A PROPOSED PROCUREMENT ACTION WHEN A SYNOPSIS THEREOF HAS ALREADY BEEN PUBLISHED IN THE COMMERCE BUSINESS DAILY AS A PRE-INVITATION NOTICE.

A PUBLICIZED NOTICE OF A PROPOSED PROCUREMENT ACTION AT THE TIME OF ISSUING AN INVITATION FOR BIDS WILL DIFFER IN SOME RESPECTS FROM A PUBLICIZED PRE-INVITATION NOTICE, BUT THEY WOULD BE PRACTICALLY THE SAME INSOFAR AS THE DESCRIPTION OF THE PROPOSED PROCUREMENT IS CONCERNED AND IN EITHER CASE ANY INTERESTED FIRM WOULD BE AFFORDED A REASONABLE OPPORTUNITY TO OBTAIN A COPY OF THE INVITATION FOR BIDS. CONSEQUENTLY, IT IS APPARENT THAT PUBLICATION IN THE FORM OF A SYNOPSIS OF A PRE-INVITATION NOTICE WOULD NOT BE INCONSISTENT WITH THE GENERAL POLICY OF THE GOVERNMENT REGARDING THE EXTENT TO WHICH PUBLICITY SHOULD BE GIVEN TO ITS REQUIREMENTS FOR SUPPLIES OR SERVICES.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS FOR TAKING EXCEPTION TO THE ADMINISTRATIVE DETERMINATION IN THIS CASE THAT A READVERTISEMENT FOR BIDS WAS NOT REQUIRED. THE PROTEST IN THE MATTER IS THEREFORE DENIED.