B-159646, SEP. 23, 1966

B-159646: Sep 23, 1966

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO VISUAL EDUCATIONAL AIDS: REFERENCE IS MADE TO YOUR TELEGRAM JULY 8. BIDS WERE TO BE OPENED AT 2:00 P.M. WHILE YOUR PROTEST ALLEGES THAT THE SPECIFICATIONS WERE VAGUE AND WEIGHTED IN FAVOR OF INSTRUX. THE INVITATION SHOWS THAT THE REQUIREMENTS LISTED UNDER THE SPECIAL PROVISIONS SECTION OUTLINE THE CASE SITUATION WHICH IS TO BE PORTRAYED IN THE FILM AND PROVIDE FOR THE PREPARATION OF A SCRIPT ON THE CASE SITUATION AND SUBSEQUENT FILM PRODUCTION BASED UPON THAT SCRIPT. THE ADMINISTRATIVE REPORT STATES THAT THE SPECIFICATIONS FOR THESE REQUIREMENTS ARE CONSIDERED TO BE NORMAL FOR THE DEVELOPMENT OF TEACHING OR TRAINING FILMS AND ARE NOT RESTRICTIVE. WHILE THE TECHNIQUE TO BE USED IN THE LOOP FILM OPERATION IS REQUIRED BY SPECIAL PROVISIONS I OF THE INVITATION TO BE "SIMILAR TO THAT DEVELOPED BY INSTRUX.

B-159646, SEP. 23, 1966

TO VISUAL EDUCATIONAL AIDS:

REFERENCE IS MADE TO YOUR TELEGRAM JULY 8, AND YOUR LETTER OF JULY 12, 1966, PROTESTING THE AWARD TO INSTRUX, INCORPORATED, OF A CONTRACT UNDER DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW) INVITATION FOR BIDS NO. HEW-IFB-30-66.

THE INVITATION, ISSUED MAY 19, 1966, REQUESTED BIDS ON FURNISHING A SCRIPT FOR A SET OF FIVE FILMS, AN ORIGINAL SET OF FIVE LOOP TRAINING FILMS WITH DUPLICATES, ADAPTER ARMS FOR A PROJECTOR, REAR PROJECTION PORTABLE SCREENS AND INSTRUCTOR MANUALS. BIDS WERE TO BE OPENED AT 2:00 P.M., E.D.T., ON JUNE 14, 1966.

WHILE YOUR PROTEST ALLEGES THAT THE SPECIFICATIONS WERE VAGUE AND WEIGHTED IN FAVOR OF INSTRUX, INCORPORATED, THE INVITATION SHOWS THAT THE REQUIREMENTS LISTED UNDER THE SPECIAL PROVISIONS SECTION OUTLINE THE CASE SITUATION WHICH IS TO BE PORTRAYED IN THE FILM AND PROVIDE FOR THE PREPARATION OF A SCRIPT ON THE CASE SITUATION AND SUBSEQUENT FILM PRODUCTION BASED UPON THAT SCRIPT. THE ADMINISTRATIVE REPORT STATES THAT THE SPECIFICATIONS FOR THESE REQUIREMENTS ARE CONSIDERED TO BE NORMAL FOR THE DEVELOPMENT OF TEACHING OR TRAINING FILMS AND ARE NOT RESTRICTIVE. MOREOVER, WHILE THE TECHNIQUE TO BE USED IN THE LOOP FILM OPERATION IS REQUIRED BY SPECIAL PROVISIONS I OF THE INVITATION TO BE "SIMILAR TO THAT DEVELOPED BY INSTRUX," THAT DESCRIPTION APPARENTLY DID NOT PREVENT YOU FROM UNDERSTANDING WHAT WAS REQUIRED SINCE YOU MAINTAIN THAT YOU INTRODUCED THE METHOD YEARS BEFORE INSTRUX EXISTED. ALSO, IT IS NOTED THAT SPECIAL PROVISIONS I DOES NOT REQUIRE THE TECHNIQUE TO BE THE SAME AS THE INSTRUX TECHNIQUE, BUT ONLY "SIMILAR" TO IT.

THREE BIDS WERE RECEIVED UNDER THE INVITATION AS FOLLOWS:

CHART

FILMEDIA STUDIOS, INC. $39,755.00

INSTRUX, INC. 18,087.00

VISUAL EDUCATIONAL AIDS 17,928.90

WITH REFERENCE TO THESE BIDS, IT APPEARS THAT BIDS FROM Y0UR COMPANY AND FILMEDIA WERE RECEIVED AND OPENED AS SCHEDULED AT 2:00 P.M., JUNE 24, 1966. LATER THAT SAME DAY AT 3:30 P.M., A BID FROM INSTRUX WAS RECEIVED IN THE PROCUREMENT OFFICE. AS TO THIS LATE BID IT WAS DETERMINED AFTER INVESTIGATION THAT IT WAS AN ACCEPTABLE LATE BID WHICH PROPERLY COULD BE CONSIDERED FOR AWARD. YOU CONTEND THAT THE LOW BID OF INSTRUX WAS NOT FOR CONSIDERATION SINCE IT WAS RECEIVED AFTER BID OPENING. IN THAT REGARD, HOWEVER, THE PROCUREMENT AGENCY HAS ADVISED THAT THE BID OF INSTRUX WAS RECEIVED IN THE MAIL ROOM OF THE AGENCY AS CERTIFIED MAIL NO. 853673 BEFORE 10:00 A.M., JUNE 14, 1966, AND THAT A BID RECEIVED AT THIS TIME UNDER NORMAL MAIL HANDLING PROCEDURES WOULD BE RECEIVED AT THE BID OPENING ROOM PRIOR TO 2:00 P.M. OF THE SAME DAY. BECAUSE OF IMPROPER HANDLING WITHIN THE AGENCY'S MAIL DISTRIBUTION SYSTEM, THE BID ENVELOPE, TIME STAMPED AT 1:27 P.M., JUNE 14, 1966, BY THE PURCHASE SECTION MAIL CLERK, WAS NOT RECEIVED BY THE PROCUREMENT AGENT RESPONSIBLE FOR OPENING OF BIDS UNTIL APPROXIMATELY 3:30 P.M., ON JUNE 14, 1966, AT WHICH TIME IT WAS RECEIVED AND OPENED AS A LATE ACCEPTABLE BID UNDER THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303-2 (C) WHICH PROVIDE AS FOLLOWS:

"IF SUBMITTED BY MAIL (OR BY TELEGRAM, WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR THE POST OFFICE SERVING IT.'

IN VIEW OF THE FOREGOING AND THE REPORTED FACTS, WE AGREE THAT THE BID OF INSTRUX WAS PROPERLY FOR CONSIDERATION IN MAKING AN AWARD UNDER THE INVITATION. SEE 42 COMP. GEN. 508.

REGARDING THE ADMINISTRATIVE FINDING OF NONRESPONSIBILITY IN CONNECTION WITH YOUR COMPANY'S BID, WE ARE ADVISED THAT, BECAUSE OF THE PROFESSIONAL NATURE OF THE REQUIREMENT, THE BIDS OF ALL THE BIDDERS WERE FORWARDED TO THE WELFARE ADMINISTRATION FOR EVALUATION AS TO THE BIDDERS' RESPONSIBILITY. ON JUNE 28, 1966, AN EVALUATION WAS RECEIVED FROM THAT ADMINISTRATION STATING THAT THE PERSONNEL OF YOUR COMPANY DID NOT HAVE THE EDUCATIONAL BACKGROUND OR EXPERIENCE NECESSARY TO DEVELOP AN ITEM MEETING THE REQUIREMENTS OF THE INVITATION. THE SCOPE OF WORK CONSISTED OF DEVELOPMENT OF TRAINING FILMS SHOWING TEACHING AND INTERVIEWING USING THE CASEWORK PROCESS. SCRIPT DEVELOPMENT WAS CONSIDERED TO REQUIRE A KNOWLEDGE OF SOCIAL WORK, PUBLIC ASSISTANCE PROGRAMS, AND EDUCATIONAL THEORY AND METHODS. THE RESUME OF PROFESSIONAL BACKGROUNDS SUBMITTED BY YOUR COMPANY FAILED TO SHOW THAT YOUR ORGANIZATION POSSESSED THE EDUCATIONAL OR EXPERIENCE BACKGROUND IN SOCIAL WORK SUFFICIENT TO PREPARE THE REQUIRED SCRIPT OR FILM. MOREOVER, THERE WAS NO SHOWING THAT YOUR COMPANY INTENDED TO OR COULD HAVE ACQUIRED QUALIFIED PERSONNEL TO PERFORM THE CONTRACT WORK. IN CONTRAST, THE PERSONNEL OF INSTRUX WERE FOUND TO HAVE THE EDUCATIONAL AND EXPERIENCE BACKGROUND NECESSARY TO PRODUCE AN ACCEPTABLE SCRIPT AND FILM OF THE CASE SITUATION TO BE PORTRAYED. AWARD WAS THEREFORE MADE TO INSTRUX ON JUNE 30, 1966.

WITH REGARD TO YOUR ALLEGATION THAT INSTRUX WILL PROBABLY PROVIDE A FILM WHICH INCORPORATES A FILM PREVIOUSLY PRODUCED BY INSTRUX UNDER A GRANT OR OTHER CONTRACT, THUS RESULTING IN INSTRUX BEING PAID TWICE FROM GOVERNMENT FUNDS FOR THE SAME WORK, WE ARE ASSURED BY THE CONTRACTING AGENCY THAT THE SCRIPT AND FILM BEING PRODUCED CURRENTLY BY INSTRUX CONSISTS OF ALL NEW MATERIAL AND WILL NOT INVOLVE THE USE OF ANY PART OF A PREVIOUS SCRIPT OR FILM. THE GENERAL SUBJECT MATTER AN CONTENT WILL BE SIMILAR TO A PREVIOUS FILM INSTRUX PRODUCED FOR THE STATE OF MARYLAND UNDER A MATCHING FUND AGREEMENT BETWEEN THE GOVERNMENT AND THE STATE. IT IS REPORTED THAT THE COMPETENCE INSTRUX DISPLAYED IN PRODUCING THIS EARLIER FILM ON SOCIAL WELFARE WAS A FACTOR WHICH DEMONSTRATED ITS BACKGROUND AND EXPERIENCE DURING EVALUATION OF THE BIDDER'S RESPONSIBILITY.

GENERALLY, BEFORE AN OTHERWISE ACCEPTABLE BID OF A SMALL BUSINESS BIDDER IS REJECTED BECAUSE OF A LACK OF CAPACITY OR CREDIT, THE CONTRACTING OFFICER MUST SUBMIT THE MATTER OF THE BIDDER'S RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA) TO PERMIT IT TO DETERMINE WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. FPR 1-1.708-2 (A). HOWEVER, THIS PROCEDURE IS NOT MANDATORY WHERE, AS HERE, THE AWARD MUST BE MADE WITHOUT DELAY AND THE CONTRACTING OFFICER INCLUDES IN THE CONTRACT FILE A SIGNED STATEMENT WHICH JUSTIFIES IMMEDIATE AWARD ACTION. FPR 1-1.708-2 (A) (1).

THE CONTRACTING OFFICER JUSTIFIED AN "IMMEDIATE AWARD" TO INSTRUX ON JUNE 30, 1966, ON THE BASIS THAT SINCE THE EVALUATION OF YOUR COMPANY'S BID WAS NOT COMPLETED UNTIL JUNE 28, 1966, INSUFFICIENT TIME REMAINED BETWEEN THAT DATE AND JUNE 30, 1966--- WHEN AWARD HAD TO BE ACCOMPLISHED--- TO OBTAIN A RULING ON YOUR FIRM'S COMPETENCY FROM THE SBA. THE RECORD CONTAINS A SIGNED DETERMINATION OF THE CONTRACTING OFFICER SUPPORTING THIS AWARD ACTION ON THE BASIS OF URGENCY. WHILE THIS DETERMINATION OF URGENCY WAS NOT EXECUTED UNTIL AFTER AWARD, SUCH FACT DID NOT AFFECT THE VALIDITY OF THE CONTRACT. SEE COASTAL CARGO COMPANY, INC. V. UNITED STATES, 351 F.2D 1004.

APART FROM THE AUTHORITY OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY, THE DETERMINATION OF THE CAPABILITIES OF A BIDDER IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL NOT OBJECT TO THE DETERMINATION AS MADE. 38 COMP. GEN. 248.

IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR OBJECTING TO THE ACTION TAKEN BY THE CONTRACTING OFFICER IN REJECTING YOUR LOW BID AND IN MAKING THE AWARD TO INSTRUX.