B-159349, JUN. 10, 1966

B-159349: Jun 10, 1966

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THE COMPANY PROTESTS ON THE BASES THAT INSUFFICIENT TIME WAS ALLOWED BY THE INVITATION TO SUBMIT A RESPONSIVE BID. THE INVITATION WAS FURNISHED TO 10 PROSPECTIVE BIDDERS AND. IT WAS MAILED TO THE COMPANY'S MIDWEST BRANCH OFFICE AT CHICAGO. CLARIFYING AMENDMENTS WERE ISSUED ON APRIL 6 AND 8 AND APPARENTLY WERE FURNISHED TO THE PROSPECTIVE BIDDERS. ON APRIL 13 A COPY OF THE INVITATION AS AMENDED WAS FORWARDED TO THE COMPANY AT ITS SILVER SPRING ADDRESS. IT IS REPORTED IN THIS CONNECTION THAT THE COMPANY WAS ON THE ORIGINAL BIDDERS' LIST BUT LISTED AT ITS CHICAGO OFFICE. THAT THE INVITATION WAS MAILED TO THAT OFFICE AT THE REQUEST OF THE COMPANY'S REPRESENTATIVE WITH WHOM THE PROCUREMENT AGENCY HAS BEEN DOING BUSINESS FOR SEVERAL YEARS.

B-159349, JUN. 10, 1966

TO THE SECRETARY OF AGRICULTURE:

BY LETTER DATED JUNE 3, 1966, WITH ENCLOSURES, ASSISTANT SECRETARY GEORGE L. MEHREN REQUESTED OUR DECISION WITH RESPECT TO A PROTEST MADE BY AMERICAN INSTRUMENT CO., INC., AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. 94-N-ARS-66, ISSUED ON APRIL 2, 1966, BY THE AGRICULTURAL RESEARCH SERVICE, NORTHERN ADMINISTRATIVE DIVISION, MINNEAPOLIS, MINNESOTA. THE COMPANY PROTESTS ON THE BASES THAT INSUFFICIENT TIME WAS ALLOWED BY THE INVITATION TO SUBMIT A RESPONSIVE BID, AND THAT THE INVITATION RESTRICTED BIDDING TO ONLY ONE SUPPLIER.

THE INVITATION REQUESTED BIDS--- FOR PUBLIC OPENING ON APRIL 19, 1966--- FOR FURNISHING AND CONNECTING TO EXISTING FACILITIES LABORATORY ROCKER- SHAKER ASSEMBLIES IN ACCORDANCE WITH DETAILED SPECIFICATIONS. THE INVITATION WAS FURNISHED TO 10 PROSPECTIVE BIDDERS AND, IN THE CASE OF THE AMERICAN INSTRUMENT CO., IT WAS MAILED TO THE COMPANY'S MIDWEST BRANCH OFFICE AT CHICAGO, ILLINOIS. CLARIFYING AMENDMENTS WERE ISSUED ON APRIL 6 AND 8 AND APPARENTLY WERE FURNISHED TO THE PROSPECTIVE BIDDERS.

ON APRIL 12, THE AMERICAN INSTRUMENT CO. AT SILVER SPRING, MARYLAND, REQUESTED THAT A COPY OF THE INVITATION BE FURNISHED TO IT, AND ON APRIL 13 A COPY OF THE INVITATION AS AMENDED WAS FORWARDED TO THE COMPANY AT ITS SILVER SPRING ADDRESS. IT IS REPORTED IN THIS CONNECTION THAT THE COMPANY WAS ON THE ORIGINAL BIDDERS' LIST BUT LISTED AT ITS CHICAGO OFFICE, AND THAT THE INVITATION WAS MAILED TO THAT OFFICE AT THE REQUEST OF THE COMPANY'S REPRESENTATIVE WITH WHOM THE PROCUREMENT AGENCY HAS BEEN DOING BUSINESS FOR SEVERAL YEARS. IT IS FURTHER REPORTED THAT RESPONSES TO OTHER INVITATIONS HAVE BEEN SUBMITTED BY THE COMPANY'S MIDWEST OFFICE. TELEGRAM DATED APRIL 15, THE COMPANY REQUESTED AN EXTENSION OF THE BID OPENING TIME BUT THE CONTRACTING OFFICER DENIED THE REQUEST ON THE BASIS THAT THERE WAS AMPLE TIME TO PREPARE AND SUBMIT A BID ESPECIALLY SINCE THE COMPANY HAD IN ITS POSSESSION A COPY OF THE INVITATION MAILED TO ITS CHICAGO OFFICE AND THE COPY FURNISHED TO ITS SILVER SPRING OFFICE ON APRIL 13.

41 U.S.C. 253 (A) REQUIRES THAT ADVERTISEMENTS FOR BIDS SHALL BE MADE A SUFFICIENT TIME PREVIOUS TO THE PURCHASE OR CONTRACT SO AS TO PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PARTICULAR PROCUREMENT. SECTION 1-2.202-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) IMPLEMENTS THIS REQUIREMENT AND PROVIDES THAT INVITATIONS SHALL ALLOW SUFFICIENT TIME TO PERMIT PROSPECTIVE BIDDERS TO PREPARE AND SUBMIT BIDS. AS A GENERAL RULE, BIDDING TIME SHOULD NOT BE LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES (FPR SEC. 1-2.202-1 (C) ). IT APPEARS FROM THE RECORD THAT THE BIDDING TIME PROVIDED BY THE INVITATION MET THESE REQUIREMENTS AND THAT NO SUBSTANTIAL BASIS EXISTED FOR GRANTING ADDITIONAL TIME TO THE COMPANY FOR SUBMITTING A BID. THE FACT THAT THE INVITATION WAS RECEIVED AT THE COMPANY'S MIDWEST OFFICE RATHER THAN AT ITS MARYLAND OFFICE IS NOT OF MATERIAL SIGNIFICANCE SINCE THE GOVERNMENT DID, IN FACT, EXTEND COMPETITIVE OPPORTUNITY TO THE COMPANY. IT WAS THE COMPANY'S RESPONSIBILITY THEREAFTER TO SUBMIT A TIMELY BID IF IT DESIRED TO COMPETE FOR THE PROCUREMENT. CONSIDERING ALSO THAT THE INVITATION WAS SENT TO THE CHICAGO ADDRESS SHOWN ON THE BIDDERS' LIST, WE MUST CONCLUDE THAT THE COMPANY WAS GIVEN SUFFICIENT TIME TO RESPOND TO THE INVITATION. CF. 34 COMP. GEN. 684.

CONCERNING THE SECOND CONTENTION OF THE COMPANY THAT THE INVITATION WAS RESTRICTIVE, WE NOTE THAT THE RECORD CONTAINS A MEMORANDUM DATED APRIL 21, 1966, FROM AN OFFICIAL OF THE PROCUREMENT ACTIVITY WHEREIN IT IS DEMONSTRATED THAT THE SPECIFICATIONS WERE IN FACT NOT RESTRICTIVE OF COMPETITION BUT REPRESENTED A STATEMENT OF THE GOVERNMENT'S ESSENTIAL MINIMUM NEEDS WHICH WERE REFLECTED IN SPECIFICATIONS THAT WERE NOT DRAFTED AROUND THE EQUIPMENT OF ANY PARTICULAR MANUFACTURER. IN VIEW OF THIS ADMINISTRATIVE STATEMENT OF THE COMPETITIVE CHARACTER OF THE SPECIFICATIONS, WE FIND NO SUBSTANCE TO THE COMPANY'S CONTENTION.

ACCORDINGLY, ON THE RECORD BEFORE US, THE PROTESTS OF THE AMERICAN INSTRUMENT CO. SHOULD BE DENIED.