B-150642, MAR. 20, 1963

B-150642, MAR. 20, 1963

TO THE E. I. DU PONT DE NEMOURS AND COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE FAILURE OF THE AIR FORCE TO SEND YOUR COMPANY AN INVITATION TO BID ON FURNISHING BULK METHANOL REQUIREMENTS OF THE DEPARTMENT OF THE AIR FORCE FOR THE PERIOD APRIL 1, 1963, THROUGH MARCH 31, 1964, UNDER INVITATION FOR BIDS NO. 36- 600-63-291, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA (MAAMA). YOU REQUEST THAT UNDER THE CIRCUMSTANCES ALL BIDS RECEIVED IN RESPONSE TO THE INVITATION BE REJECTED AND THE PROCUREMENT BE READVERTISED.

THE REPORT FURNISHED BY THE DEPARTMENT OF THE AIR FORCE SHOWS THAT THE INVITATION WAS ISSUED ON NOVEMBER 14, 1962, WITH THE DATE OF DECEMBER 18, 1962, SET FOR THE OPENING OF THE BIDS IN ORDER TO INITIATE PROCUREMENT ACTION AS EARLY IN THE FISCAL YEAR AS PRACTICABLE. SUCH ACTION WAS FOR THE PURPOSE OF PROVIDING POTENTIAL CONTRACTORS WITH MORE LEAD TIME FOR PLANNING PURPOSES AND ALSO TO PERMIT THE PROCUREMENT ACTIVITY TO PLAN ITS WORK IN AN ORDERLY MANNER TO PREVENT COMPRESSION OF THE PROCUREMENT PROCESSING CYCLE DURING THE LATTER PART OF THE FISCAL YEAR.

THE INVITATION FOR BIDS WAS ORIGINALLY SENT TO 24 FIRMS WHICH REPRESENTED THE COMPLETE MECHANIZED BIDDERS' LIST ON FILE AT MAAMA FOR THE COMMODITY CLASS (METHANOL) BEING PURCHASED. IN ADDITION, THE PROCUREMENT WAS SYNOPSIZED AND PUBLISHED IN THE NOVEMBER 23, 1962, ISSUE OF THE COMMERCE BUSINESS DAILY. AS A RESULT OF THE PUBLICATION, SEVEN ADDITIONAL FIRMS REQUESTED, AND WERE FURNISHED, COPIES OF THE INVITATION. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, INCLUDING TWO FROM FIRMS SOLICITED AS THE RESULT OF THE PUBLISHED SYNOPSIS.

THE REASON THAT THE INDUSTRIAL AND BIOCHEMICALS DEPARTMENT OF DU PONT WAS NOT INCLUDED ON THE BIDDERS' MAILING LIST AND, THEREFORE, WAS NOT SOLICITED, EVEN THOUGH IT WAS THEN FURNISHING AND HAD BEEN A REGULAR SUPPLIER OF METHANOL FOR SEVERAL YEARS, IS AS FOLLOWS: IN MARCH 1962 MAAMA COMMODITY LIST WAS UPDATED AND REPUBLISHED. BECAUSE OF THE REVISION AND CHANGES IN THE NEW COMMODITY LIST IT WAS NECESSARY TO UPDATE AND REVISE THE RELATED COMMODITY SOURCE LIST. ACCORDINGLY, IN ACCORDANCE WITH ESTABLISHED PROCEDURES, DURING MARCH 1962 LETTERS WERE SENT TO ALL FIRMS, INCLUDING DU PONT, WHOSE NAMES APPEARED ON THE PREVIOUS COMMODITY SOURCE LIST. SAID LETTERS ADVISED THAT THE COMMODITY LIST CHANGES NECESSITATED COMPLETE RE-REGISTRATION BY ALL FIRMS AND REQUESTED THAT THE ENCLOSED FORM SF 129,"BIDDERS' MAILING LIST APPLICATION," BE FILLED OUT AND SUBMITTED. THE LETTERS FURTHER STATED THAT FAILURE OF A FIRM TO RE-REGISTER BY MAY 16, 1962, WOULD RESULT IN THAT FIRM'S NAME BEING DELETED FROM THE NEW MECHANIZED COMMODITY SOURCE LIST. ALSO, ON MARCH 23, 1962, LETTERS WERE SENT TO THE VARIOUS CONTRACT MANAGEMENT DISTRICTS, ENCLOSING A LIST OF LOCAL FIRMS CONTACTED AND REQUESTING FOLLOW-UP ACTION. IT IS REPORTED THAT THE PHILADELPHIA CONTRACT MANAGEMENT DISTRICT TOOK SUCH ACTION IN THE NATURE OF A FURTHER LETTER TO THE INDUSTRIAL AND BIOCHEMICALS DEPARTMENT OF DU PONT. NEVERTHELESS, DU PONT FAILED TO REPLY AT ALL, AND THIS RESULTED IN THE DELETION OF THE INDUSTRIAL AND BIOCHEMICALS DEPARTMENT OF DU PONT FROM THE MAAMA SOURCE LIST WHEN THE LIST WAS REVISED.

IN YOUR LETTER IT IS STATED THAT DU PONT HAS NO RECORD OF THE RECEIPT OF THE REQUESTS TO RE-REGISTER AND THAT THE PUBLISHED NOTICE OF THE PROPOSED PROCUREMENT IN THE COMMERCE BUSINESS DAILY WAS NOT NOTICED BY INTERESTED SALES PERSONNEL IN DU PONT. A POSSIBLE EXPLANATION FOR THIS IS STATED TO BE THAT IT HAS BEEN THE USUAL PRACTICE OF THE AIR FORCE FOR MANY YEARS TO ISSUE THE BID INVITATION FOR METHANOL AFTER THE BEGINNING OF THE NEW CALENDAR YEAR, RATHER THAN IN THE MONTH OF NOVEMBER AS WAS DONE IN THE PRESENT CASE. IT IS ALSO STATED TO BE UNDERSTOOD THAT THE STEPS CUSTOMARILY TAKEN TO CHECK DIRECTLY WITH AN ESTABLISHED SUPPLIER AS TO WHETHER IT DESIRES TO BE DROPPED FROM THE BIDDERS' LIST WERE NOT TAKEN IN THIS CASE. IN VIEW OF THESE CIRCUMSTANCES IT IS URGED THAT THE INEQUITY BE CORRECTED BY CANCELLATION AND REISSUANCE OF THE INVITATION FOR BIDS.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT DU PONT HAS BEEN ONE OF THE SUCCESSFUL BIDDERS UNDER PREVIOUS SOLICITATIONS AND, AS SUCH, THE FACT THAT THEY WERE NOT INCLUDED ON THE CURRENT BIDDERS' LIST SHOULD POSSIBLY HAVE BEEN QUESTIONED BY THE BUYING PERSONNEL AT THE TIME OF THE INSTANT SOLICITATION, AND THAT APPROPRIATE ACTION WILL BE TAKEN TO CORRECT THIS SITUATION, AND TO ASSURE, INSOFAR AS POSSIBLE, THAT ALL QUALIFIED POTENTIAL SOURCES ARE SOLICITED.

THIS PROCUREMENT IS A SUBSTANTIAL ONE, INVOLVING OVER 10,000,000 GALLONS OF METHANOL FOR USE THROUGHOUT THE COUNTRY. THE INVITATION WAS SENT TO ALL FIRMS WHICH HAD RE-REGISTERED FOR INCLUSION ON THE UPDATED BIDDERS' LIST AND THE PROCUREMENT WAS ADVERTISED IN THE COMMERCE BUSINESS DAILY. THERE IS NO INDICATION WHATSOEVER, AND NONE IS ALLEGED, THAT THERE WAS ANY INTENT OR PURPOSE ON THE PART OF THE ADMINISTRATIVE OFFICIALS TO PRECLUDE DU PONT FROM BIDDING. IT IS MOST UNFORTUNATE THAT DU PONT WAS NOT SOLICITED. HOWEVER, IT APPEARS THAT DU PONT ITSELF MAY NOT HAVE BEEN ENTIRELY FREE FROM ALL FAULT IN THE MATTER. FURTHERMORE, ALTHOUGH THE GOVERNMENT ATTEMPTS TO, IT CANNOT GUARANTEE THAT EVERY POTENTIAL SOURCE WILL AT ALL TIMES BE INDIVIDUALLY SOLICITED, AND THIS IS ONE OF THE REASONS WHY AS MUCH PUBLICITY AS REASONABLY POSSIBLE IS GIVEN TO PROPOSED PROCUREMENTS.

IN THE CIRCUMSTANCES WE MUST AGREE WITH THE DEPARTMENT OF THE AIR FORCE THAT THE SPECULATIVE ADVANTAGE TO BE GAINED BY ATTEMPTING TO CORRECT ANY INJUSTICE TO DU PONT BY CANCELLING THE INSTANT INVITATION IS HEAVILY OUTWEIGHED BY THE PREJUDICE WHICH WOULD RESULT TO THE COMPETITIVE BID SYSTEM AND TO THOSE FIRMS WHICH BID IN GOOD FAITH AND WHOSE PRICES HAVE ALREADY BEEN EXPOSED. ACCORDINGLY, YOUR PROTEST IS DENIED.