B-155112, NOV. 4, 1964

B-155112, NOV. 4, 1964

TO BARRETT'S TRANSFER AND STORAGE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 3, 1964, PROTESTING THE REJECTION OF YOUR BID AND THE POSSIBLE AWARD OF A CONTRACT TO THE KANE TRANSFER COMPANY UNDER INVITATION FOR BIDS NO. 60S-5-58-B1 OR WA6S-5-58-B1, ISSUED ON JULY 23, 1964, BY THE FEDERAL AVIATION AGENCY FOR THE PROCUREMENT FROM A SMALL BUSINESS CONCERN OF MISCELLANEOUS MOVING AND RELATED SERVICES AS MIGHT BE REQUIRED AND ORDERED FROM THE DATE OF CONTRACT AWARD TO AND INCLUDING JUNE 30, 1965. YOU CONTEND THAT THERE WAS NO BASIS FOR A DETERMINATION THAT YOUR BID CONTAINED DISCREPANCIES IN THE RATES QUOTED; YOU FURTHER STATE IT IS YOUR UNDERSTANDING THAT THE KANE TRANSFER COMPANY IS NOT ELIGIBLE FOR THE AWARD BECAUSE IT HAS BEEN RULED NOT A SMALL BUSINESS.

THE RECORD SUBMITTED BY THE FEDERAL AVIATION AGENCY SHOWS THAT A CONTRACT WAS AWARDED TO THE KANE TRANSFER COMPANY, WHICH HAD CERTIFIED ITSELF TO BE SMALL BUSINESS, ON OR ABOUT SEPTEMBER 22, 1964, AND THAT THE RICHMOND, VIRGINIA, OFFICE OF THE SMALL BUSINESS ADMINISTRATION ADVISED YOU BY LETTER DATED SEPTEMBER 9, 1964, TO THE EFFECT THAT YOUR PROTEST REGARDING THE SMALL BUSINESS STATUS OF THE KANE TRANSFER COMPANY WOULD NOT BE CONSIDERED BY THE SMALL BUSINESS ADMINISTRATION BECAUSE IT WAS NOT FILED WITHIN THE TIME ALLOWED UNDER AMENDMENT 5 TO REVISION 4 OF THE SMALL BUSINESS SIZE STANDARDS REGULATION.

IN VIEW OF THE REFUSAL BY THE SMALL BUSINESS ADMINISTRATION TO REVIEW THE SIZE STATUS OF THE KANE TRANSFER COMPANY WE FIND THAT THE ACCEPTANCE BY THE CONTRACTING OFFICER OF THE FIRM'S SELF-CERTIFICATION WAS NOT AN ABUSE OF ADMINISTRATIVE DISCRETION.

WITH RESPECT TO THE FACT THAT YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE INVITATION FOR BIDS AS AMENDED, THE RECORD SHOWS THAT AMENDMENT NO. 2 TO THE INVITATION, ISSUED ON JULY 30, 1964, PROVIDED A NEW SCHEDULE FOR THE QUOTATION OF RATES ON MOVING SERVICES. YOU NEVERTHELESS SUBMITTED A BID ON THE BASIS OF THE ORIGINAL SCHEDULE AND ALLEGED AFTER PUBLIC OPENING OF BIDS ON AUGUST 17, 1964, THAT YOU DID NOT RECEIVE A COPY OF THE AMENDMENT. THE CONTRACTING OFFICER BELIEVED THAT THERE WAS NO POSSIBLE WAY TO EVALUATE YOUR BID TO DETERMINE WHETHER THE TOTAL COST OF THE PROCUREMENT WOULD BE LESS UNDER A CONTRACT AWARDED TO YOUR COMPANY THAN UNDER A CONTRACT AWARDED TO THE KANE TRANSFER COMPANY, THE LOWEST BIDDER ON THE BASIS OF QUOTATIONS OFFERED IN ACCORDANCE WITH THE AMENDED BIDDING SCHEDULE.

BIDS WERE ORIGINALLY REQUESTED ON THE BASIS OF STRAIGHT TIME AND OVERTIME HOURLY RATES RELATED TO FIVE ITEMS OF SERVICE, BROKEN OUT BY DAY SHIFT, MONDAY THROUGH SATURDAY; DAY SHIFT, SUNDAYS AND HOLIDAYS; AND NIGHT SHIFT 8 P.M. TO 8 A.M. WHILE AN ESTIMATED NUMBER OF HOURS FOR STRAIGHT TIME AND OVERTIME WAS SHOWN, THERE WAS NO INDICATION OF A QUANTITY BREAKDOWN FOR EVALUATION BY THE THREE TIME CATEGORIES. AMENDMENT NO. 2 TO THE INVITATION CHANGED THE REQUIRED FORM OF BIDDING TO THE FURNISHING OF QUOTATIONS OF HOURLY RATES ONLY FOR 24 HOURS PER DAY OF SERVICE TO BE PERFORMED DURING A PERIOD OF MONDAY THROUGH SATURDAY, EXCEPT HOLIDAYS, AND ON SUNDAYS AND HOLIDAYS; ESTIMATED QUANTITY REQUIREMENTS WERE SHOWN FOR STRAIGHT TIME AND SUNDAY AND HOLIDAY TIME. NO PROVISION WAS MADE FOR THE QUOTATION OF NIGHT RATES BECAUSE OF THE CONTRACTING OFFICER'S UNDERSTANDING THAT IT IS THE ESTABLISHED CUSTOM IN THE INDUSTRY TO QUOTE THE SAME RATES FOR LABOR AND EQUIPMENT FOR EITHER DAY OR NIGHT WORK.

THE KANE QUOTATIONS WERE BASED ON FURNISHING SERVICES 24 HOURS PER DAY AND IT IS TO BE NOTED THAT ONLY IN THE CASES OF CATEGORIES (D) AND (E), WHICH LISTED THE LOWEST ESTIMATES OF THE NUMBERS OF HOURS OF REQUIRED SERVICE, WERE YOUR QUOTATIONS DEFINITELY LOWER THAN THOSE OF THE KANE TRANSFER COMPANY. THE QUANTITY ESTIMATES SHOW THE BULK OF THE REQUIRED SERVICES TO CONSIST OF FURNISHING TRUCKS WITH DRIVERS, HELPERS AND SUPERVISORS UNDER CATEGORIES (A), (B), AND (C) ON REGULAR WORKING DAYS.

WE HAVE TAKEN THE POSITION THAT THE BASIS OF BID EVALUATION SHOULD BE CLEARLY AND PRECISELY SET FORTH AND MADE KNOWN TO THE BIDDERS IN ADVANCE. 40 COMP. GEN. 773. SPECIFICALLY, WHERE BIDS ARE TO BE EVALUATED ON ESTIMATED QUANTITIES THE METHOD TO BE EMPLOYED SHOULD BE MADE CLEAR. COMP. GEN 257, 260. IN THIS CASE, THE BID SCHEDULE WAS SO SET OUT IN THE ORIGINAL INVITATION THAT THE BIDDERS COULD HAVE LITTLE IF ANY IDEA OF THE BASIS OF EVALUATION EXCEPT AS TO STRAIGHT TIME AND OVERTIME AND AS THE CONTRACTING OFFICER RECOGNIZED, NO EVALUATION WAS POSSIBLE WITH THE INFORMATION AVAILABLE. ACCORDINGLY, AMENDMENT NO. 2 WAS ISSUED SHOWING ONLY TWO TIME CATEGORIES AND ESTIMATED TIME QUANTITIES FOR EACH WHICH, IN OUR JUDGMENT, CONFORMS WITH THE PRINCIPLES CITED ABOVE. SINCE YOU DID NOT COMPLETE THE AMENDED SCHEDULE, IT WAS NOT POSSIBLE TO EVALUATE YOUR BID. IT IS UNFORTUNATE THAT YOU DID NOT RECEIVE A COPY OF AMENDMENT NO. 2 TO THE INVITATION BEFORE THE TIME SCHEDULED FOR THE PUBLIC OPENING OF BIDS. HOWEVER, IT HAS BEEN OUR POSITION THAT AN UNINTENTIONAL FAILURE ON THE PART OF THE GOVERNMENT TO SEND A PARTICULAR FIRM A COPY OF AN INVITATION OR AN AMENDMENT THERETO DOES NOT AFFECT THE VALIDITY OF A CONTRACT AWARDED UPON CONSIDERATION OF BIDS WHICH MEET THE ESSENTIAL REQUIREMENTS OF THE INVITATION AND ALL OF ITS AMENDMENTS. SEE, GENERALLY, 34 COMP. GEN. 684, AND 40 ID. 126.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.