B-165229, NOV. 21, 1968

B-165229: Nov 21, 1968

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SECRETARY: REFERENCE IS MADE TO LETTER DATED OCTOBER 18. BIDS WERE RECEIVED FROM THREE FIRMS BY THE OPENING DATE OF SEPTEMBER 9. IT IS CONTENDED THAT THE PROCUREMENT SHOULD HAVE BEEN RESTRICTED EXCLUSIVELY TO SMALL BUSINESS PARTICIPATION SINCE THERE WAS ADEQUATE COMPETITION AVAILABLE. BOUYEA WAS THE SOLE RESPONSIVE AND RESPONSIBLE BIDDER AS A RESULT OF A SMALL BUSINESS SET-ASIDE OF BAKERY PRODUCTS. THERE WERE NO OTHER KNOWN RESPONSIBLE SMALL BUSINESS CONCERNS IN THE VICINITY OF PLATTSBURGH AIR FORCE BASE THAT COULD BE CONSIDERED AS PROSPECTIVE CONTRACTORS. THE CONTRACTING OFFICER DETERMINED THAT HE DID NOT HAVE THE REASONABLE EXPECTATION OF RECEIVING BIDS FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS TO ASSURE REASONABLE PRICES AS REQUIRED BY PARAGRAPH 1-706.5 (A) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

B-165229, NOV. 21, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 18, 1968, FILE REFERENCE AFSPPCA, FROM THE CHIEF, CONTRACTOR RELATIONS BRANCH, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, FURNISHING A REPORT ON THE PROTEST OF BOUYEA BAKING CO., INC., UNDER INVITATION FOR BIDS (IFB) NO. F30636-69-B-0021, ISSUED BY PLATTSBURGH AIR FORCE BASE, NEW YORK.

THE SUBJECT INVITATION, ISSUED ON JULY 15, 1968, ON AN UNRESTRICTED BASIS, SOLICITED BIDS FOR FURNISHING BAKERY PRODUCTS FOR TROOP CONSUMPTION AND RESALE AT PLATTSBURGH AIR FORCE BASE FOR AN ESTIMATED 12-MONTHS' REQUIREMENT. THE INVITATION SCHEDULE COVERED 10 ITEMS OF BREAD LOAVES AND ROLLS, EACH HAVING A MINIMUM SPECIFIED WEIGHT IN OUNCES. BIDS WERE RECEIVED FROM THREE FIRMS BY THE OPENING DATE OF SEPTEMBER 9, 1968, WITH FOLLOWING COMPARATIVE PRICES:

UNIT PRICES

DURKEE'S DOMESTIC INTERSTATE BAKERIES ITEM NO. BOUYEA BAKERY, INC. CORPORATION -------- ------ ----------------- -------------------

1 $0.199 $0.207* $0.165*

2 0.153 0.155* 0.15*

3 0.189 0.23 0.18*

4 0.167 0.18 0.18

5 0.31 0.34 0.26

6 0.229 0.23 0.21

7 0.199 0.21 0.17

8 0.199 0.21* 0.17

9 0.249 0.29 0.23

10 0.249 0.29* 0.23 *BID PRICE BASED ON LESS THAN MINIMUM WEIGHT SPECIFIED IN IFB.

BOUYEA PROTESTS AGAINST ANY AWARD TO INTERSTATE ON TWO BASES. FIRST, IT IS CONTENDED THAT THE PROCUREMENT SHOULD HAVE BEEN RESTRICTED EXCLUSIVELY TO SMALL BUSINESS PARTICIPATION SINCE THERE WAS ADEQUATE COMPETITION AVAILABLE. SECONDLY, BOUYEA CONTENDS THAT INTERSTATE QUALIFIED ITS BID. ON THE BASIS OF THE FOREGOING, BOUYEA REQUESTS THAT ALL BIDS BE REJECTED AND THE INVITATION BE READVERTISED AS A 100-PERCENT SMALL BUSINESS SET- ASIDE.

THE REPORT ADVISES THAT IN THE PREVIOUS YEAR'S PROCUREMENT (1967), BOUYEA WAS THE SOLE RESPONSIVE AND RESPONSIBLE BIDDER AS A RESULT OF A SMALL BUSINESS SET-ASIDE OF BAKERY PRODUCTS. MOREOVER, THERE WERE NO OTHER KNOWN RESPONSIBLE SMALL BUSINESS CONCERNS IN THE VICINITY OF PLATTSBURGH AIR FORCE BASE THAT COULD BE CONSIDERED AS PROSPECTIVE CONTRACTORS. CONSEQUENTLY, THE CONTRACTING OFFICER DETERMINED THAT HE DID NOT HAVE THE REASONABLE EXPECTATION OF RECEIVING BIDS FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS TO ASSURE REASONABLE PRICES AS REQUIRED BY PARAGRAPH 1-706.5 (A) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THIS REGULATION PROVIDES THAT TOTAL SMALL BUSINESS SET -ASIDES ARE PERMISSIBLE WHERE "THERE IS REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES.' IN THIS REGARD, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION AS TO WHETHER OR NOT SUCH ,REASONABLE EXPECTATION" EXISTS IS A MATTER WITHIN THE DISCRETION OF THE CONTRACTING OFFICIALS AND THAT OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF SUCH OFFICIALS ABSENT A CLEAR SHOWING OF ABUSE OF DISCRETION. SEE B-165124, NOVEMBER 13, 1968; 45 COMP. GEN. 228. WE FIND NOTHING IN THE RECORD THAT WOULD CONTRAVENE THE CONTRACTING OFFICER'S DECISION TO CONDUCT THIS PROCUREMENT ON AN UNRESTRICTED BASIS AND, THEREFORE, BOUYEA'S PROTEST ON THIS POINT IS DENIED.

BOUYEA'S SECOND CONTENTION IS THAT INTERSTATE'S BID SHOULD BE REJECTED AS NONRESPONSIVE SINCE IT QUALIFIED ITS BID. WE NOTE THAT INTERSTATE DID QUALIFY ITS BID ON THE FIRST THREE ITEMS OF THE INVITATION SCHEDULE BY CHANGING BREAD LOAF WEIGHTS ON ITEM 1 FROM THE REQUIRED 24 OUNCES TO 22 OUNCES AND ON ITEMS 2 AND 3 FROM THE REQUIRED 18 OUNCES TO 16 OUNCES AND SUBMITTED ITS BID ON THAT BASIS. ITEMS 4 THROUGH 10 WERE NOT SO QUALIFIED AND BIDS SUBMITTED ON THOSE ITEMS WERE IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION SCHEDULE. ACCORDINGLY, WE AGREE IN PART WITH BOUYEA'S SECOND CONTENTION, BUT ONLY TO THE EXTENT THAT INTERSTATE RENDERED ITS BID NONRESPONSIVE AS TO ITEMS 1 THROUGH 3, INCLUSIVE. IN THIS CONNECTION, PAGE 2 OF THE INVITATION PROVIDES, WITH RESPECT TO AWARD AND EVALUATION OF BIDS, AS FOLLOWS: "AWARD "AWARD WILL BE MADE ON THE BASIS OF THE LOWEST COST TO THE GOVERNMENT PER ITEM AND/OR COMBINATION OF ITEMS TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE SOLICITATION. "EVALUATION OF BIDS (MAR 64) "IN ADDITION TO OTHER FACTORS, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS). FOR THE PURPOSE OF MAKING THIS EVALUATION, IT WILL BE ASSUMED THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION, AND INDIVIDUAL AWARDS WILL BE FOR THE ITEMS AND/OR COMBINATION OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT, INCLUDING SUCH ADMINISTRATIVE COSTS.'

THE FOREGOING QUOTED METHOD OF EVALUATION OF BIDS IS IN CONSONANCE WITH ASPR 2-201 (B) (XIX). AS WAS STATED IN 47 COMP. GEN. 233, 234, THE GENERAL RULE, WHERE THE GOVERNMENT HAS RESERVED THE RIGHT TO AWARD ITEMS SEPARATELY OR IN THE AGGREGATE (AS IN THIS INVITATION), IS THAT AWARDS ARE PERMITTED TO BE MADE TO ONE OR MORE BIDDERS FOR ONE OR MORE ITEMS OR TO ONE BIDDER FOR ALL ITEMS, DEPENDING ON WHICH IS MORE IN THE INTEREST OF THE GOVERNMENT. IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO DISAGREE WITH THE PROPOSED ADMINISTRATIVE ACTION TO MAKE AWARD TO BOUYEA AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER ON ITEMS 1 THROUGH 4 OF THE INVITATION AND TO AWARD ITEMS 5 THROUGH 10 TO INTERSTATE AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER ON THOSE ITEMS.