B-167379, AUG. 15, 1969

B-167379: Aug 15, 1969

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WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED. NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. TO PREMIER ELECTRICAL CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. (1) SINCE YOUR FIRM'S NAME WAS NOT ON THE PROSPECTIVE BIDDERS' LIST. YOUR FIRM WAS PRECLUDED FROM SUBMITTING A BID IN RESPONSE TO THE INVITATION. THE INVITATION WAS ISSUED ON MAY 20. WAS SENT TO 11 PROSPECTIVE BIDDERS. IT IS REPORTED THAT THE POTENTIAL CONTRACTORS SELECTED WERE MECHANICAL RATHER THAN ELECTRICAL BECAUSE OF THE NATURE OF THE WORK REQUIRED.

B-167379, AUG. 15, 1969

BID PROTEST - BIDDER LISTING DECISION DENYING PROTEST OF PREMIER ELECTRICAL CONSTRUCTION CO. AGAINST FAILURE TO BE INCLUDED ON BIDDER LISTING AND TO RECEIVE BID DOCUMENTS FOR REPAIRS TO DESALINIZATION PLANT FOR NAVY AT GUANTANAMO BAY. ALTHOUGH PROTESTANT DID NOT RECEIVE BID SET IN TIME TO PREPARE AND SUBMIT BID SUCH INADVERTENT QUESTION DOES NOT CONSTITUTE SUFFICIENT BASIS TO CANCEL THE INVITATION OR QUESTION THE AWARD. WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID.

TO PREMIER ELECTRICAL CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1969, WITH ENCLOSURES, AND THE COPY OF YOUR LETTER OF JULY 11, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER INVITATION FOR BIDS NO. N62475-69-B- 0066, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, CARIBBEAN DIVISION, SAN JUAN, PUERTO RICO. YOU CONTEND THAT, (1) SINCE YOUR FIRM'S NAME WAS NOT ON THE PROSPECTIVE BIDDERS' LIST, AND (2) AFTER REQUESTING BIDDING DOCUMENTS AND NOT RECEIVING THEM, YOUR FIRM WAS PRECLUDED FROM SUBMITTING A BID IN RESPONSE TO THE INVITATION.

THE INVITATION WAS ISSUED ON MAY 20, 1969, FOR REPAIRS TO THE DESALINIZATION PLANT, UNITED STATES NAVAL BASE, GUANTANAMO BAY, CUBA, AND WAS SENT TO 11 PROSPECTIVE BIDDERS. IT IS REPORTED THAT THE POTENTIAL CONTRACTORS SELECTED WERE MECHANICAL RATHER THAN ELECTRICAL BECAUSE OF THE NATURE OF THE WORK REQUIRED. HOWEVER, A COPY OF THE INVITATION WAS ALSO SENT TO CONTINENTAL UNITED STATES AND LOCAL TRADE JOURNALS AND CONTRACTORS ASSOCIATIONS. COPIES WERE ALSO POSTED IN LOCAL POST OFFICE BUILDINGS AND ON BULLETIN BOARDS AT THE OFFICE OF THE CARIBBEAN DIVISION, SAN JUAN, AND THE OFFICE OF THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION (ROICC), GUANTANAMO BAY, CUBA.

IT IS FURTHER REPORTED THAT 21 PROSPECTIVE BIDDERS REQUESTED AND RECEIVED BIDDING DOCUMENTS. IN THIS CONNECTION, THE NAVY REPORTS THAT A COPY OF THE PLANS WAS "AIRMAILED" TO YOUR FIRM AT ITS CHICAGO OFFICE ADDRESS OF 162 NORTH CLINTON STREET ON JUNE 12, 1969. THIS WAS DONE AT THE REQUEST OF YOUR LOCAL REPRESENTATIVE, MR. ELLISON, ON JUNE 12, 1969, AS HAD BEEN DONE ON SEVERAL GUANTANAMO PROJECTS IN THE PAST.

FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 20, 1969, AND AWARD OF CONTRACT WAS MADE TO HEYL AND PATTERSON INTERNATIONAL, INC., THE LOW BIDDER, IN THE AMOUNT OF $401,990. WE HAVE NOTED THAT HEYL AND PATTERSON, THE SUCCESSFUL BIDDER, WAS ALSO NOT INCLUDED IN THE PROSPECTIVE BIDDERS' LIST BUT HAD LEARNED OF THE WORK FROM THE ROICC GUANTANAMO BULLETIN BOARD AND HAD REQUESTED A SET OF PLANS FOR BIDDING PURPOSES.

WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. B-164047, JUNE 10, 1968; B-147515, JANUARY 12, 1962. WHILE YOU CONTEND THAT, AS OF JULY 11, 1969, YOU STILL HAD NOT RECEIVED AN INVITATION, YOUR CHANGE OF OFFICE ADDRESS MIGHT HAVE BEEN A FACTOR IN NOT RECEIVING THE INVITATION IN TIME TO SUBMIT A BID.

ALTHOUGH IT IS REGRETTABLE THAT YOUR FIRM DID NOT RECEIVE A BID SET IN SUFFICIENT TIME TO PREPARE AND SUBMIT A BID PURSUANT TO THE TERMS AND CONDITIONS OF THE INVITATION, THERE IS NO INDICATION IN THE RECORD THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER INTERESTED FIRM FROM PARTICIPATING IN THE PROCUREMENT. IN THE ABSENCE OF SUCH INTENT OR PURPOSE, EVEN AN INADVERTENT FAILURE TO FURNISH TIMELY A COPY OF AN INVITATION TO A PARTICULAR CONTRACTOR DOES NOT CONSTITUTE, IN OUR OPINION, A SUFFICIENT BASIS TO CANCEL THE INVITATION OR TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. CF. 34 COMP. GEN. 684; B-164047, SUPRA; B-161241, MAY 8, 1967.