B-159684, OCT. 7, 1966

B-159684: Oct 7, 1966

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THESE ITEMS WERE ORIGINALLY CALLED FOR UNDER IFB NO. DEFINITE QUANTITIES WERE STATED FOR THE CATEGORIES OF WORK. ESTIMATES WERE GIVEN. THE ITEMS WERE DIVIDED INTO GROUPS OF FOUR ITEMS EACH. ALTHOUGH PRICES FOR EACH ITEM WERE REQUIRED. THE ESTIMATES WERE STATED FOR EACH GROUP. NO ESTIMATES WERE LISTED FOR EACH ITEM WITHIN A GROUP. A REQUIREMENTS -TYPE CONTRACT WAS SPECIFIED. WHICH OBLIGATED THE GOVERNMENT TO PURCHASE ONLY ON THE BASIS OF ITS NEEDS DURING THE CONTRACT PERIOD AND ONLY AS APPROPRIATED FUNDS WERE MADE AVAILABLE. ITEMS 1 THRU 4 WERE LISTED AS ONE GROUP. YOU STATED THAT THE INVITATION TERMS WERE NOT CLEAR. YOU WERE ADVISED THAT THE BID ABSTRACT ON THE CURRENT CONTRACT WOULD BE MADE AVAILABLE UPON A VISIT TO THE LANGLEY CENTER.

B-159684, OCT. 7, 1966

TO GENERAL DESIGN COMPANY:

WE REFER TO YOUR LETTER OF JULY 13, 1966, PROTESTING THE READVERTISEMENT OF ITEMS 1 THRU 4 UNDER INVITATION FOR BIDS NO. L-6625 A ISSUED JULY 1, 1966, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, LANGLEY RESEARCH CENTER.

THE ITEMS COVER NEGATIVES AS REQUIRED IN THE PRODUCTION OF PUBLICATIONS AT THE LANGLEY RESEARCH CENTER FOR FISCAL YEAR 1967. THESE ITEMS WERE ORIGINALLY CALLED FOR UNDER IFB NO. L-6625 ISSUED APRIL 18, 1966, ALONG WITH ITEMS 5 THRU 16 FOR PRINTING AND BINDING AND NEGATIVES FROM COPY. DEFINITE QUANTITIES WERE STATED FOR THE CATEGORIES OF WORK, BUT ESTIMATES WERE GIVEN. THE ITEMS WERE DIVIDED INTO GROUPS OF FOUR ITEMS EACH, FOR AWARD ON THE BASIS OF THE AGGREGATE PRICE ON EACH GROUP, ALTHOUGH PRICES FOR EACH ITEM WERE REQUIRED. THE ESTIMATES WERE STATED FOR EACH GROUP, BUT NO ESTIMATES WERE LISTED FOR EACH ITEM WITHIN A GROUP. A REQUIREMENTS -TYPE CONTRACT WAS SPECIFIED, WHICH OBLIGATED THE GOVERNMENT TO PURCHASE ONLY ON THE BASIS OF ITS NEEDS DURING THE CONTRACT PERIOD AND ONLY AS APPROPRIATED FUNDS WERE MADE AVAILABLE. ITEMS 1 THRU 4 WERE LISTED AS ONE GROUP, WITH AN ESTIMATED QUANTITY OF 20,000 PAGES.

PRIOR TO BID OPENING YOU SENT A TELEGRAM DATED MAY 9, 1966, TO THE CONTRACTING OFFICER REQUESTING TO BE ADVISED OF THE LOAD FACTOR FOR EACH ITEM AS WELL AS THE CURRENT CONTRACT TERMS AND UNIT PRICES. YOU STATED THAT THE INVITATION TERMS WERE NOT CLEAR. ON MAY 10, 1966, THE CONTRACTING OFFICER REPLIED THAT THE CURRENT CONTRACT TERMS AND UNIT PRICES WOULD NOT BE MADE AVAILABLE, NOR WOULD ESTIMATES BE FURNISHED IN ADDITION TO THE FIGURES STATED IN THE INVITATION. BUT YOU WERE ADVISED THAT THE BID ABSTRACT ON THE CURRENT CONTRACT WOULD BE MADE AVAILABLE UPON A VISIT TO THE LANGLEY CENTER.

BIDS ON THIS TOTAL SMALL BUSINESS SET-ASIDE WERE OPENED ON MAY 23, 1966. YOUR FIRM, QUOTING A TOTAL PRICE OF $ .97 WAS LOW ON ITEMS 1 THRU 4. THE NEXT LOW BID FOR THAT GROUP WAS $1.007. YOUR PRICE OF $ .97 WAS QUOTED ENTIRELY ON ITEM 1, WITH NO CHARGE QUOTED ON ITEMS 2 THRU 4. THE CONTRACTING OFFICER SUSPECTED THAT THIS INDICATED THE POSSIBILITY OF UNBALANCED BIDDING. HE REVIEWED THE REQUIREMENTS IN TERMS OF THE CURRENT CONTRACT FOR ITEMS 1 THRU 4, AND FOUND THAT 90 PERCENT OF THE CURRENT WORK HAD BEEN FOR ITEM 1, AND THAT ITEM 2 COVERED THE REMAINING 10 PERCENT OF THE WORK, WITH NO APPLICABLE REQUIREMENTS FOR ITEMS 3 AND 4. HE ESTIMATED THAT WHILE THE REQUIREMENTS WOULD BE DOUBLED FOR FISCAL YEAR 1967, A SIMILAR PATTERN WOULD APPLY WITH REGARD TO THE DISTRIBUTION OF THE WORK AMONG THE ITEMS. IT THUS APPEARED TO THE CONTRACTING OFFICER THAT THE AWARD TERMS HAD ENCOURAGED UNBALANCED BIDS. A REVIEW OF THE ACTUAL BIDDING CONFIRMED THIS. FOR EXAMPLE, ONE OF THE BIDDERS HAD QUOTED A PRICE OF $ .82 ON ITEM 1, BUT HAD ALSO QUOTED A PRICE OF $ .90 ON ITEM 2. IT WAS APPARENT THAT UNDER A REALISTIC EVALUATION THIS BIDDER OFFERED A LOWER CONTRACT PRICE THAN WAS OFFERED BY YOUR FIRM. AND ANOTHER BIDDER HAD QUOTED $ .80 ON ITEM 1 AND $2.40 ON ITEM 2. HE CONCLUDED THAT ITEMS 1 THRU 4 SHOULD NOT BE AWARDED IN VIEW OF THESE BIDDING PATTERNS. HE FOUND, HOWEVER, THAT THE BIDS RECEIVED ON THE OTHER GROUPS HAD NOT BEEN UNBALANCED AND, ACCORDINGLY, AWARDS WERE MADE ON THESE GROUPS. YOUR FIRM HAD NOT BID ON THESE OTHER GROUPS.

ITEMS 1 THRU 4 WERE READVERTISED ON JULY 1, 1966, UNDER IFB NO. L 6625-A. AN ATTACHED LETTER TO THE INVITATION EXPLAINED THAT THE READVERTISEMENT WAS DUE TO THE UNBALANCED BIDDING WHICH RESULTED FROM THE INADEQUATE EVALUATION CRITERIA FOLLOWED ON THE ORIGINAL INVITATION. UNDER THE READVERTISEMENT, A LOAD FACTOR OF 90 PERCENT WAS PROVIDED FOR ITEM 1 AND A FACTOR OF 10 PERCENT FOR ITEM 1A (ITEM 2 UNDER THE ORIGINAL INVITATION). IT WAS PROVIDED THAT THE REMAINING TWO ITEMS WOULD NOT BE INCLUDED IN THE EVALUATION BUT THAT THE GOVERNMENT WOULD ACCEPT QUOTED PRICES ON THESE ITEMS, IF NEEDED, OR NEGOTIATE PRICES WITH THE CONTRACTOR AT THE TIME OF A NEED.

ON AUGUST 24, 1966 (AFTER THE OPENING), ITEMS 2 AND 2A OF THE INVITATION WERE CANCELLED. ALSO, ON THE SAME DATE, THE CENTER TERMINATED ALL CONTRACTS AWARDED UNDER THE FIRST INVITATION FOR THE REASON THAT THE INVITATION HAD BEEN DEFECTIVE WITH REGARD TO ALL THE ITEMS AND NOT JUST THE FIRST GROUP. AWARD HAS NOT YET BEEN MADE UNDER IFB NO. L-6625-A.

YOU DID NOT SUBMIT A BID ON THE RE-ADVERTISED PROCUREMENT, INSISTING INSTEAD THAT AWARD SHOULD HAVE BEEN MADE TO YOU UNDER THE CANCELLED INVITATION. WE CANNOT AGREE.

THE CONTRACTING OFFICER SHOULD HAVE HEEDED YOUR WARNING AND AMENDED THE ORIGINAL INVITATION TO PROVIDE WEIGHTS FOR ALL THE ITEMS. HE CANCELLED THE INVITATION IN ORDER TO PROTECT THE GOVERNMENT FROM AN UNWISE CONTRACT. EVIDENT THAT YOUR BID WAS NOT LOW WHEN MEASURED BY ACTUAL REQUIREMENTS.

AN ADDITIONAL FACTOR INFLUENCED THE CONTRACTING OFFICER IN FAVOR OF CANCELLING THE INVITATION. THE ORIGINAL AWARD TERMS PROVIDED THAT THE LOWEST BIDDER ON THE GROUP COULD REFUSE TO ACCEPT AN INDIVIDUAL ORDER IF HE WAS UNABLE TO MEET THE DELIVERY REQUIREMENTS. THE GOVERNMENT WOULD THEN HAVE TO TURN TO THE NEXT LOWER BIDDER. THE CONTRACTING OFFICER REASONED THAT THESE TERMS ALLOWED A LOW BIDDER A BASIS FOR REFUSING "NO- CHARGE" ITEMS, CAUSING THE GOVERNMENT TO TURN TO ANOTHER BIDDER WITH THE POSSIBILITY OF INCURRING A SUBSTANTIAL CHARGE ON THE ITEM. THIS POSSIBILITY COUPLED WITH THE UNBALANCED BIDDING INDICATED TO THE CONTRACTING OFFICER THAT THE REQUIREMENT SHOULD BE READVERTISED UNDER REVISED TERMS.

WE AGREE WITH THIS ACTION. AN AWARD TO YOUR FIRM UNDER THE ORIGINAL INVITATION WOULD NOT HAVE BEEN IN THE BEST INTERESTS OF THE GOVERNMENT. APPARENTLY NONE OF THE OTHER GROUPS SHOULD HAVE BEEN AWARDED. IN ANY EVENT, WE HAVE NO BASIS TO OBJECT TO THE READVERTISEMENT OF ITEMS 1 THRU 4. ACCORDINGLY, YOUR PROTEST AGAINST AN AWARD UNDER IFB NO. L-6625-A IS DENIED.