B-161241, MAY 8, 1967

B-161241: May 8, 1967

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SCHONBRUNN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10. THE OFFICIALS TO BE PHOTOGRAPHED WERE THE PRESIDENT. THE PROCUREMENT WAS SYNOPSIZED IN THE DEPARTMENT OF COMMERCE BUSINESS DAILY BULLETIN. FOUR PROPOSALS WERE RECEIVED ON JANUARY 23. SFC-7-0129 FOR FURNISHING THE REQUIRED PORTRAITS WAS AWARDED THE CHASE STUDIOS. A CONTRACT MAY BE NEGOTIATED WITHOUT ADVERTISING IF "FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION.'. A DETERMINATION AND FINDINGS JUSTIFYING THE NEGOTIATION OF THIS CONTRACT UNDER 41 U.S.C. 252 (C) (10) WAS MADE BY THE CONTRACTING OFFICER. WHICH WAS AWARDED TO THE LOWEST RESPONSIVE. IS NOT SUBJECT TO QUESTION BY OUR OFFICE. THE ADMINISTRATIVE OFFICE STATED IN ITS REPORT TO OUR OFFICE THAT IT DOES NOT MAINTAIN A BIDDERS LIST SPECIFICALLY FOR PORTRAIT PHOTOGRAPHERS AND THAT IT WAS NOT UNTIL APRIL 10.

B-161241, MAY 8, 1967

TO MR. SYDNEY M. SCHONBRUNN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1967, PROTESTING AGAINST THE FAILURE OF THE PROCUREMENT OFFICER OF THE SMITHSONIAN INSTITUTION, WASHINGTON, D.C., TO FURNISH YOU WITH A COPY OF AN INVITATION FOR BIDS (REQUEST FOR PROPOSALS) FOR FURNISHING PHOTOGRAPHIC PORTRAITS OF CERTAIN UNITED STATES GOVERNMENT OFFICIALS.

THE SMITHSONIAN INSTITUTION, SUPPLY DIVISION, WASHINGTON, D.C.,BY REQUEST FOR PROPOSALS NO. SFH-7-0016 DATED JANUARY 3, 1967, SOLICITED PROPOSALS FOR FURNISHING PHOTOGRAPHIC PORTRAITS OF VARIOUS UNITED STATES GOVERNMENT OFFICIALS, IN BLACK-AND-WHITE AND COLOR TO THE NATIONAL PORTRAIT GALLERY. THE OFFICIALS TO BE PHOTOGRAPHED WERE THE PRESIDENT, THE VICE PRESIDENT, MEMBERS OF THE CABINET, MEMBERS OF THE SUPREME COURT OF THE UNITED STATES, AND ALL UNITED STATES SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES. THE PROCUREMENT WAS SYNOPSIZED IN THE DEPARTMENT OF COMMERCE BUSINESS DAILY BULLETIN. IN ADDITION TO THE THREE SOURCES INITIALLY SOLICITED, COPIES OF THE REQUEST. FOUR PROPOSALS WERE RECEIVED ON JANUARY 23, 1967. ON FEBRUARY 16, 1967, CONTRACT NO. SFC-7-0129 FOR FURNISHING THE REQUIRED PORTRAITS WAS AWARDED THE CHASE STUDIOS, LTD., WASHINGTON, D.C., PURSUANT TO 41 U.S.C. 252 (C) (10) AND SECTION 1-3.210 (A) (13) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) AT A NEGOTIATED PRICE OF $40,800. UNDER THE CITED STATUTE, A CONTRACT MAY BE NEGOTIATED WITHOUT ADVERTISING IF "FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION.' IN ACCORDANCE WITH THE PROCUREMENT REGULATIONS IMPLEMENTING THAT STATUTE, A DETERMINATION AND FINDINGS JUSTIFYING THE NEGOTIATION OF THIS CONTRACT UNDER 41 U.S.C. 252 (C) (10) WAS MADE BY THE CONTRACTING OFFICER. SEE FPR 1-3.210 (B) AND 1 3.305. THESE CIRCUMSTANCES, THE CONTRACT, WHICH WAS AWARDED TO THE LOWEST RESPONSIVE, RESPONSIBLE OFFEROR, IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

IN REGARD TO THE FAILURE OF YOUR FIRM TO RECEIVE A COPY OF THE REQUEST FOR PROPOSALS, THE ADMINISTRATIVE OFFICE STATED IN ITS REPORT TO OUR OFFICE THAT IT DOES NOT MAINTAIN A BIDDERS LIST SPECIFICALLY FOR PORTRAIT PHOTOGRAPHERS AND THAT IT WAS NOT UNTIL APRIL 10, 1967--- APPROXIMATELY TWO MONTHS AFTER THE CONTRACT WAS AWARDED--- THAT IT BECAME AWARE OF THE FACT THAT YOUR FIRM WAS INTERESTED IN SUBMITTING A "BID" ON THE PROCUREMENT IN QUESTION.

ALTHOUGH IT IS REGRETTABLE THAT YOUR FIRM DID NOT RECEIVE A COPY OF THE REQUEST FOR PROPOSALS PRIOR TO ITS CLOSING DATE, IT DOES NOT APPEAR THAT THE PROCURING ACTIVITY WAS AWARE OF YOUR INTEREST IN THE PROCUREMENT UNTIL AFTER IT RECEIVED YOUR TELEPHONE CALL ON APRIL 10, 1967, AND THERE IS NO INDICATION THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER PROSPECTIVE CONTRACTOR FROM PARTICIPATING IN THE PROCUREMENT. IN THE ABSENCE OF SUCH INTENT OR PURPOSE, OUR OFFICE HAS CONSISTENTLY HELD THAT AN INADVERTENT FAILURE TO FURNISH A COPY OF AN INVITATION FOR BIDS TO A PARTICULAR SUPPLIER DOES NOT CONSTITUTE A SUFFICIENT BASIS ON WHICH TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. SEE 34 COMP. GEN. 684; B-138281, FEBRUARY 13, 1959; B-135553, MAY 5, 1958. SUCH RULE IS EQUALLY APPLICABLE HERE.

ACCORDINGLY, WE SEE NO BASIS TO QUESTION THE ACTIONS TAKEN WITH RESPECT TO THIS PROCUREMENT. YOUR PROTEST IS THEREFORE DENIED.