B-154688, OCT. 7, 1964

B-154688, OCT. 7, 1964

TO MRS. IVA MIDGETT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT BY LANGLEY AIR FORCE BASE, VIRGINIA, TO SERVICE AND REPAIR TYPEWRITERS.

IT IS REPORTED THAT ON APRIL 28, 1964, YOU WERE AWARDED CONTRACT NO. GS- 03S-25315 BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO SERVICE AND REPAIR MANUAL TYPEWRITERS AT FEDERAL INSTALLATIONS IN THE NEWPORT NEWS, VIRGINIA, AREA. IMMEDIATELY THEREAFTER, YOU CONTACTED MR. REYNAUD AND MR. WILSON AT LANGLEY AIR FORCE BASE, WHICH IS IN THE AREA COVERED BY THE GSA CONTRACT, AND ADVISED THEM YOU HAD BEEN AWARDED THE CONTRACT TO SERVICE AND REPAIR TYPEWRITERS AT THE BASE, AND THE PRICE THEREFOR. YOU ADVISE THAT YOU WERE THEN TOLD YOU WOULD BE CONTACTED UPON RECEIPT OF A COPY OF THE CONTRACT AT THE BASE.

IT FURTHER APPEARS FROM THE RECORD THAT INVITATION FOR BIDS NO. 44 600-64 -114 WAS ISSUED ON JUNE 16, 1964, BY LANGLEY FOR SERVICING ALL MAKES AND MODELS OF MANUAL TYPEWRITERS AT THAT BASE, IN AN ESTIMATED QUANTITY OF 1,250, AND THE COMPLETE OVERHAUL OF APPROXIMATELY 100 MANUAL TYPEWRITERS DURING THE PERIOD JULY 6, 1964, THROUGH JUNE 30, 1965. TWO BIDS WERE RECEIVED IN RESPONSE THERETO AND OPENED ON JUNE 30, 1964. CONTRACT AF 44/600/-3986 WAS AWARDED ON JULY 6, 1964, TO NEWPORT BUSINESS MACHINES, INC., IN THE ESTIMATED AMOUNT OF $10,637.50.

IT IS YOUR CONTENTION THAT THE GSA CONTRACT WHICH YOU WERE AWARDED ON APRIL 28 ENCOMPASSED SERVICE AND REPAIR OF TYPEWRITERS AT LANGLEY AND, IF IT DID NOT, AN INVITATION FOR BIDS SHOULD HAVE BEEN SENT TO YOU FOR THE SUBJECT PROCUREMENT. UNDER THE APPLICABLE LAW AND REGULATIONS, NEITHER CONTENTION IS VALID.

PARAGRAPH 1, SCOPE OF CONTRACT, OF THE SPECIAL PROVISIONS OF YOUR CONTRACT WITH GSA PROVIDES THAT ALL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, EXCEPT THE DEPARTMENT OF DEFENSE, ARE OBLIGATED TO USE THE SERVICES PROVIDED FOR THEREIN. THE AUTHORITY FOR THIS PROVISION IS 41 U.S.C. 252 (A). WHILE IT IS RECOGNIZED THAT A GSA CONTRACT IS NOT MANDATORY ON DEPARTMENT OF DEFENSE ESTABLISHMENTS, SECTION V--- INTERDEPARTMENTAL AND COORDINATED PROCUREMENT--- OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT MILITARY PURCHASING ACTIVITIES SHALL, WITH CERTAIN EXCEPTIONS, ORDER THEIR REQUIREMENTS FOR SUPPLIES AND SERVICES OF DESIGNATED CLASSES THROUGH GSA OR ITS CONTRACTORS. PARAGRAPH 5-205 OF ASPR STATES THE POLICY OF THE DEPARTMENT OF DEFENSE TO UTILIZE GSA SOURCES FOR REPAIR SERVICES OF ITEMS DEFINED IN 5-206, EXCEPT WHEN "* * * THE CONTRACTING OFFICE HAS ACTUAL KNOWLEDGE THAT THE TOTAL COST * * * IS SUCH THAT THE REPAIR * * * CAN BE PERFORMED MORE ADVANTAGEOUSLY TO THE GOVERNMENT FROM A SOURCE OTHER THAN ONE AVAILABLE THROUGH THE GENERAL SERVICES ADMINISTRATION * * *.' ITEMS DEFINED IN 5-206 INCLUDE TYPEWRITERS UNDER FEDERAL SUPPLY CLASS GROUP 74.

IN THIS CASE, THE CONTRACTING OFFICER REPORTS THAT BECAUSE THE UNIT PRICES OF YOUR GSA CONTRACT WERE HIGHER THAN THE UNIT PRICES UNDER THE PREVIOUS CONTRACT LANGLEY HAD FOR THE SAME SERVICES, HE DETERMINED IT WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT TO SOLICIT BIDS FROM ANOTHER SOURCE. THE CONTRACT SUBSEQUENTLY AWARDED TO NEWPORT BUSINESS MACHINES, INC., PROVIDES FOR SERVICE AND REPAIR OF 1,250 MANUAL TYPEWRITERS AT A UNIT PRICE OF $3.475 PER INSPECTION AND FOR OVERHAUL OF 100 MANUAL TYPEWRITERS AT A UNIT PRICE OF $19.50, FOR A TOTAL CONTRACT PRICE OF $10.637.50, WHEREAS THE UNIT PRICES CALLED FOR UNDER YOUR CONTRACT, APPLIED TO THE SPECIFICATIONS OF THE LANGLEY CONTRACT, WOULD RESULT IN A TOTAL CONTRACT PRICE OF $12,450, THEREBY INCREASING THE COST FOR THE SERVICES AT LANGLEY IN THE AMOUNT OF $1,812.50. UNDER SUCH CIRCUMSTANCES, IT IS APPARENT THAT THE CONTRACT AWARDED BY LANGLEY IS MORE ADVANTAGEOUS TO THE GOVERNMENT, AND THAT THE ACTION TAKEN WAS IN ACCORDANCE WITH THE APPLICABLE REGULATIONS.

WITH RESPECT TO YOUR SECOND CONTENTION, CHAPTER 137 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1457, 10 U.S.C. 2301-2314, ET SEQ., PROVIDES FOR THE PURCHASE OF PROPERTY AND SERVICES BY THE AGENCIES NAMED THEREIN, INCLUDING THE DEPARTMENT OF THE AIR FORCE. SECTION 2304 (A) PROVIDES THAT PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES MUST BE MADE BY FORMAL ADVERTISING, WITH STATED EXCEPTIONS NOT APPLICABLE HERE. IT IS PROVIDED IN SECTION 2305 (A) THAT WHEN FORMAL ADVERTISING IS REQUIRED, THE INVITATIONS FOR BIDS "SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.' SECTION 2-102.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES, WITH RESPECT TO PROCUREMENT BY FORMAL ADVERTISING PURSUANT TO 10 U.S.C. 2304 (A), THAT "PROCUREMENT SHALL GENERALLY BE MADE BY SOLICITING BIDS FROM ALL QUALIFIED SOURCES OF SUPPLIES OR SERVICES DEEMED NECESSARY BY THE CONTRACTING OFFICER TO ASSURE FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE REQUIRED SUPPLIES OR SERVICES.' SECTION 2-101 OF ASPR IN DEFINING "FORMAL ADVERTISING" ALSO STATES IN PARAGRAPH (II) THAT IT INVOLVES "PUBLICIZING THE INVITATION FOR BIDS, THROUGH DISTRIBUTION TO PROSPECTIVE BIDDERS, POSTING IN PUBLIC PLACES, AND SUCH OTHER MEANS AS MAY BE APPROPRIATE * *

IT IS CLEAR FROM THE ABOVE-CITED LAWS AND REGULATIONS THAT THE MEANS BY WHICH A PARTICULAR INVITATION FOR BIDS IS PUBLICIZED AND THE NUMBER OF PROSPECTIVE BIDDERS SOLICITED ARE MATTERS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER, SO LONG AS "FREE AND FULL COMPETITION" ARE THEREBY ASSURED. THE QUESTION, THEREFORE, IS WHETHER THERE WAS A PROPER EXERCISE OF THE DISCRETION PERMITTED THE CONTRACTING OFFICER IN THIS CASE. IT IS AXIOMATIC THAT NOT EVERY POSSIBLE PROSPECTIVE BIDDER MUST BE REACHED, OR FOR THAT MATTER, CAN BE REACHED. IN THE INSTANT CASE, THE IFB WAS SENT TO FIVE PROSPECTIVE BIDDERS, POSTED IN THE POST OFFICES AT HAMPTON, NEWPORT NEWS, AND NORFOLK, VIRGINIA,SENT TO THE SMALL BUSINESS ADMINISTRATION, AND NOTICE OF THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. YOU WOULD HAVE BEEN ENTITLED TO A COPY OF THE INVITATION IF YOU HAD REQUESTED IT, AND WE CANNOT SAY THAT THE SOLICITATION WAS NOT SUFFICIENT TO ASSURE ADEQUATE COMPETITION.

WHILE WE UNDERSTAND THAT LANGLEY WILL BE ADVISED NOT TO PURPOSELY LIMIT DISTRIBUTION OF IFBS TO A PARTICULAR AREA IN THE FUTURE, IN VIEWOF THE MATTER SET OUT ABOVE WE SEE NO LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE. YOUR PROTEST MUST THEREFORE BE DENIED.