B-157462, SEP. 28, 1965

B-157462: Sep 28, 1965

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THE DATE ON WHICH BIDS ON THE EVANSVILLE JOB SHOULD HAVE BEEN OPENED. ON THE BASIS THAT ITS OFFER WAS FOUR OR FIVE DAYS LATE. THE PROCUREMENTS IN QUESTION WERE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 302 (C) (3) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. QUOTATIONS FOR THE PAINTING AT KANSAS CITY WERE SOLICITED BY REQUEST FOR QUOTATIONS DATED JULY 22. QUOTATIONS ON THE EVANSVILLE PAINTING WERE REQUESTED BY REQUEST FOR QUOTATIONS DATED JULY 29. WHICH IS LOCATED IN KANSAS CITY. SINCE THERE IS NO REQUIREMENT THAT THE QUOTATIONS BE SEALED OR PUBLICLY OPENED. THE PREMATURE DISCLOSURE OF YOUR QUOTATIONS ON THE TWO PROCUREMENTS IN QUESTION APPEARS TO HAVE BEEN ACCIDENTAL.

B-157462, SEP. 28, 1965

TO OLAND RENOVATING COMPANY:

YOUR LETTER OF AUGUST 10, 1965, PROTESTS THE PROCEDURES EMPLOYED BY THE UNITED STATES WEATHER BUREAU IN THE PROCUREMENT OF PAINTING SERVICES AT KANSAS CITY, MISSOURI, AND EVANSVILLE, INDIANA. SPECIFICALLY, YOU STATE THAT FOUR DAYS PRIOR TO AUGUST 6, THE DATE ON WHICH BIDS ON THE EVANSVILLE JOB SHOULD HAVE BEEN OPENED, THE AMOUNT OF YOUR QUOTATION ON THAT JOB HAD BEEN DISCLOSED TO A COMPETITOR. ALSO, YOU PROTEST AGAINST AWARD TO ANOTHER OFFEROR, THE WORRELL PAINTING COMPANY, ON THE BASIS THAT ITS OFFER WAS FOUR OR FIVE DAYS LATE.

THE PROCUREMENTS IN QUESTION WERE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 302 (C) (3) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (3), WHICH PERMITS SUCH PROCEDURE FOR PURCHASES AND CONTRACTS INVOLVING AN AGGREGATE AMOUNT NOT IN EXCESS OF $2,500. QUOTATIONS FOR THE PAINTING AT KANSAS CITY WERE SOLICITED BY REQUEST FOR QUOTATIONS DATED JULY 22, WHICH SPECIFIED AUGUST 2 AS THE CLOSING DATE FOR SUBMISSION OF QUOTATIONS. QUOTATIONS ON THE EVANSVILLE PAINTING WERE REQUESTED BY REQUEST FOR QUOTATIONS DATED JULY 29, WHICH SPECIFIED A CLOSING DATE OF AUGUST 5.

THE PROCUREMENT OFFICE, WHICH IS LOCATED IN KANSAS CITY, REPORTS THAT ITS PRACTICE IN NEGOTIATED PROCUREMENTS HAS BEEN TO OPEN AND TABULATE THE QUOTATIONS AS RECEIVED, SINCE THERE IS NO REQUIREMENT THAT THE QUOTATIONS BE SEALED OR PUBLICLY OPENED. HOWEVER, ITS POLICY REPORTEDLY HAS BEEN NOT TO DISCLOSE TO ANY OFFEROR INFORMATION REGARDING ITS STANDING UNTIL AFTER THE TIME FIXED FOR CLOSING OF OFFERS, AND SECTION 1-3.805-1/B) OF THE FEDERAL PROCUREMENT REGULATIONS SPECIFICALLY PROHIBITS THE DISCLOSURE OF ANY INFORMATION CONCERNING PRICES QUOTED. THE PREMATURE DISCLOSURE OF YOUR QUOTATIONS ON THE TWO PROCUREMENTS IN QUESTION APPEARS TO HAVE BEEN ACCIDENTAL, AND WITHOUT INTENT OR DESIGN ON THE PART OF ANY EMPLOYEE OF THE PROCURING ACTIVITY. HOWEVER, AS A RESULT OF YOUR COMPLAINT, THE PROCUREMENT OFFICE HAS INITIATED ACTION TO INSURE THAT HEREAFTER QUOTATIONS WILL BE FILED UNOPENED UNTIL AFTER THE PUBLISHED TIME FOR CLOSING OF OFFERS, AND NO INFORMATION ON SUCH QUOTATIONS WILL BE TABULATED AND PUBLICLY DISCLOSED PRIOR TO THE FIRST WORKING DAY AFTER THE CLOSING DATE.

FOLLOWING IS A SUMMARY OF THE QUOTATIONS RECEIVED ON BOTH PROCUREMENTS:

TABLE

KANSAS CITY EVANSVILLE

OFFEROR DATE AMOUNT DATE AMOUNT WORRELL PAINTING CO.

8/2/65 $ 680 8/5/65 $ 806 OLAND RENOVATING CO. 7/28/65 991 7/30/65 1,200 JEROME AND ASSOCIATES 8/2/65 987 NO QUOTE I. R. CORNELL AND SONS, 7/26/65 1,138 7/28/65 1,338 INC. AMMON AND CO; INC.

7/28/65 2,110 NO QUOTE

THE RECORD SHOWS THAT WORRELL HAS BEEN AWARDED BOTH CONTRACTS AT ITS QUOTED PRICES.

IN NEGOTIATED PROCUREMENTS, THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING DO NOT APPLY. INSTEAD, CONTRACTING OFFICIALS HAVE A DUTY TO CONDUCT SUCH PROCUREMENTS TO THE BEST ADVANTAGE OF THE GOVERNMENT. ADDITIONALLY, WHILE THE FEDERAL PROCUREMENT REGULATIONS (FPR) ISSUED IN IMPLEMENTATION OF THE STATUTORY NEGOTIATING AUTHORITY EXERCISED BY THE WEATHER BUREAU IN THE PROCUREMENTS INVOLVED REQUIRE THAT REQUESTS FOR PROPOSALS OR QUOTATIONS SHALL SPECIFY A DATE FOR SUBMISSION OF PROPOSALS, THERE IS NO PROHIBITION IN THE FPR AGAINST CONSIDERATION OF A LATE QUOTATION IN A SMALL PURCHASE PROCUREMENT, AND THE REQUEST FOR QUOTATIONS EMPLOYED IN THIS INSTANCE CONTAINED THE EXPRESS STATEMENT THAT "THE GOVERNMENT RESERVES THE RIGHT TO CONSIDER QUOTATIONS OR MODIFICATIONS THEREOF RECEIVED AFTER THE DATE INDICATED SHOULD SUCH ACTION BE IN THE INTEREST OF THE GOVERNMENT.'

WHILE THE PREMATURE DISCLOSURE OF YOUR QUOTATIONS TO ONE OF THE OTHER OFFERORS WAS UNFORTUNATE, THERE IS NO INDICATION OF ANY INTENTIONAL IMPROPRIETY ON THE PART OF THE PROCURING ACTIVITY, AND THERE IS NO INDICATION THAT YOUR BID PRICE WAS KNOWN TO WORRELL AT THE TIME IT PREPARED AND SUBMITTED ITS LOWER QUOTATIONS. FURTHERMORE, SINCE WORRELL'S QUOTATION ON EACH JOB WAS MORE THAN 30 PERCENT LOWER THAN THE NEXT LOW QUOTATION, IT IS CLEAR THAT AWARD OF BOTH CONTRACTS TO WORRELL WAS TO THE BEST ADVANTAGE OF THE GOVERNMENT. THEREFORE, WE FIND NO LEGAL BASIS TO DISTURB THE AWARDS TO WORRELL, AND YOUR PROTEST IS DENIED.