B-167847, DEC. 11, 1969

B-167847: Dec 11, 1969

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IS DENIED PROTEST. ALTHOUGH PROPRIETY OF REMOVING PROTESTANT'S NAME FROM BIDDER'S LIST IS QUESTIONABLE. PROTESTANT WAS NOT PREJUDICED THEREBY SINCE HE WAS PUT ON NOTICE OF PRESENT PROCUREMENT BY NAVY'S ADVICE OF ITS INTENTION NOT TO EXERCISE ITS OPTION AND RECEIVED BID PACKET IN AMPLE TIME BEFORE BID OPENING. IS DENIED PROTEST SINCE PROPRIETY OF PARTICULAR PROCUREMENT IS DETERMINABLE FROM GOVERNMENT'S POINT OF VIEW UPON BASIS OF OBTAINING ADEQUATE COMPETITION AND REASONABLE PRICES. THERE IS NO REQUIREMENT THAT ALL BIDS BE REJECTED MERELY BECAUSE OF FAILURE TO FURNISH INVITATION TO BIDDER. WHERE PROCUREMENT IS ADVERTISED IN COMMERCE BUSINESS DAILY. INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 5.

B-167847, DEC. 11, 1969

BIDDERS--REMOVAL FROM LIST--PROPRIETY CONTRACTOR ADVISED BY NAVY THAT CURRENT CONTRACT FOR JANITORIAL SERVICES WOULD BE TERMINATED FOR DEFAULT UNLESS SERVICES IMPROVED AND LATER ADVISED GOVERNMENT WOULD NOT EXERCISE ITS OPTION TO EXTEND SAME, WHO PROTESTS AWARD OF NEW CONTRACT TO ANOTHER FIRM, ALLEGING INSUFFICIENT TIME FOR BID PREPARATION AND ARBITRARY REMOVAL FROM BIDDER'S LIST, IS DENIED PROTEST. ALTHOUGH PROPRIETY OF REMOVING PROTESTANT'S NAME FROM BIDDER'S LIST IS QUESTIONABLE, ABSENT ACTUAL DEFAULT ACTION, PROTESTANT WAS NOT PREJUDICED THEREBY SINCE HE WAS PUT ON NOTICE OF PRESENT PROCUREMENT BY NAVY'S ADVICE OF ITS INTENTION NOT TO EXERCISE ITS OPTION AND RECEIVED BID PACKET IN AMPLE TIME BEFORE BID OPENING. BIDDERS--INVITATION RIGHT CONTRACTOR ADVISED BY NAVY THAT CURRENT CONTRACT WOULD BE TERMINATED FOR DEFAULT UNLESS JANITORIAL SERVICES IMPROVED, WHO PROTESTS PRESENT CONTRACT AWARD, ALLEGING ARBITRARY REMOVAL FROM BIDDER'S LIST, IS DENIED PROTEST SINCE PROPRIETY OF PARTICULAR PROCUREMENT IS DETERMINABLE FROM GOVERNMENT'S POINT OF VIEW UPON BASIS OF OBTAINING ADEQUATE COMPETITION AND REASONABLE PRICES, AND NOT ON AFFORDING EVERY POSSIBLE PROSPECTIVE BIDDER OPPORTUNITY TO BID. THERE IS NO REQUIREMENT THAT ALL BIDS BE REJECTED MERELY BECAUSE OF FAILURE TO FURNISH INVITATION TO BIDDER. WHERE PROCUREMENT IS ADVERTISED IN COMMERCE BUSINESS DAILY, REMOVAL FROM BIDDER'S LIST, AND FAILURE TO PERSONALLY ADVISE BIDDER OF PROCUREMENT, DO NOT JUSTIFY INVITATION CANCELLATION.

TO ORBITING ENTERPRISES, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 5, 1969, PROTESTING AGAINST THE AWARD OF CONTRACT N62477-70-C-0291 TO ANOTHER FIRM. IT IS YOUR CONTENTION THAT ALTHOUGH YOU WERE THE CURRENT CONTRACTOR AND FULLY QUALIFIED TO PERFORM THE CONTRACT, YOU WERE, NEVERTHELESS, (1) NOT ALLOWED SUFFICIENT TIME TO PREPARE AND SUBMIT YOUR BID, THE ONLY PUBLIC NOTICE OF THE PROCUREMENT BEING A SYNOPSIS IN THE COMMERCE BUSINESS DAILY APPEARING ON AUGUST 12, 1969, THE BID OPENING DATE, AND (2) YOUR NAME WAS ARBITRARILY REMOVED FROM THE PROCURING ACTIVITY'S BIDDERS LIST.

ACCORDING TO THE NAVY DEPARTMENT'S REPORT, CONTRACT N62477-68-C-0664 (NBY 97663) FOR MULTI-BUILDING JANITORIAL SERVICES FOR THE PERIOD SEPTEMBER 1, 1968, THROUGH AUGUST 31, 1969, WAS AWARDED TO YOUR FIRM ON AUGUST 22, 1968. THIS CONTRACT CONTAINED A PROVISION FOR EXTENSION OF THE CONTRACT AT THE OPTION OF THE GOVERNMENT FOR A PERIOD NOT TO EXCEED 12 MONTHS. HOWEVER, THE REPORT STATES THAT YOUR PERFORMANCE OF THE CONTRACT WAS SO UNSATISFACTORY THAT YOUR FIRM'S BONDING COMPANY (UNITED FIDELITY AND GUARANTY COMPANY) WAS ADVISED THAT UNLESS YOUR SERVICES IMPROVED, TERMINATION ACTION FOR DEFAULT WOULD BE RECOMMENDED. APPARENTLY, AS A RESULT OF YOUR FIRM'S UNSATISFACTORY SERVICE, THE PROCURING ACTIVITY DECIDED NOT TO EXERCISE ITS OPTION TO EXTEND THE CONTRACT AND YOU WERE SO ADVISED BY LETTER OF JULY 28, 1969.

ON AUGUST 1, 1969, INVITATION FOR BIDS FOR THE SAME SERVICES COVERED BY YOUR CONTRACT (MULTI-BUILDING JANITORIAL SERVICES) WERE SOLICITED FROM SEVERAL FIRMS FOR THE PERIOD SEPTEMBER 1, 1969, THROUGH AUGUST 31, 1970. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON AUGUST 6, 1969, NOT AUGUST 12, 1969, AS YOU CONTEND. ALSO, AN INVITATION WAS POSTED AT THE NAVAL STATION AS WELL AS OTHER PUBLIC PLACES. WHILE YOU WERE NOT INITIALLY SOLICITED, ON AUGUST 6 OR 7, 1969, A MR. CHAMBLISS, A SUPERVISOR FOR YOUR FIRM WAS GIVEN THE NECESSARY BIDDING PACKET. ON AUGUST 12, YOUR FIRM REQUESTED, BY TELEPHONE, THAT THE BID OPENING DATE BE DEFERRED FOR AT LEAST TEN DAYS. THIS REQUEST WAS DENIED AND THE BIDS WERE OPENED ON SCHEDULE WITH FRUGAL COMPANY SUBMITTING THE LOW BID. CONTRACT N62477-70-C -0291 WAS AWARDED TO FRUGAL COMPANY ON AUGUST 26, 1969.

CONCERNING YOUR ALLEGATION THAT YOU WERE ARBITRARILY REMOVED FROM THE BIDDER'S LIST, THE RECORD INDICATES THAT THE REASON YOUR NAME WAS NOT INCLUDED ON THE BIDDER'S LIST WAS THAT YOUR PERFORMANCE UNDER CONTRACT N62477-68-C-0664 WAS CONSIDERED TO BE UNSATISFACTORY. WHILE WE QUESTION THE PROPRIETY OF SUCH A PROCEDURE IN THE ABSENCE OF ACTUAL DEFAULT ACTION, WE FAIL TO SEE WHERE YOU COULD HAVE BEEN PREJUDICED BY SUCH FAILURE IN THE INSTANT CASE, SINCE YOU WERE PUT ON NOTICE OF THE FACT THAT THE PRESENT PROCUREMENT WOULD BE ADVERTISED BY THE PROCURING ACTIVITY'S LETTER TO YOU OF JULY 28, 1969, ADVISING YOU OF THE GOVERNMENT'S INTENTION NOT TO EXERCISE ITS OPTION TO EXTEND YOUR CONTRACT. MOREOVER, EVEN ASSUMING THAT YOU DID NOT SEE THE INVITATIONS POSTED IN CERTAIN PUBLIC PLACES, YOU DID RECEIVE THE NECESSARY BIDDING PACKET BY AUGUST 6 OR 7, WHICH WOULD APPEAR TO HAVE ALLOWED YOU SUFFICIENT TIME TO PREPARE AND SUBMIT A BID BY AUGUST 12, SINCE YOU WERE THOROUGHLY FAMILIAR, AS THE CURRENT CONTRACTOR, WITH THE WORK THAT WOULD BE INVOLVED IN THE PROCUREMENT.

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 PROSPECTIVE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. 164047, JUNE 10, 1968; B-167379, AUGUST 15, 1969. THREE BIDS WERE RECEIVED, ALL OF WHICH WERE WITHIN TEN PERCENT OF THE GOVERNMENT'S ESTIMATE, THUS INDICATING ADEQUATE COMPETITION AND REASONABLE PRICES. MOREOVER, THERE IS NO REQUIREMENT THAT ALL BIDS BE REJECTED MERELY BECAUSE OF FAILURE TO FURNISH A BIDDER WITH A COPY OF AN INVITATION. B-149263, AUGUST 27, 1962; B-167813, OCTOBER 14, 1969. SEE 34 COMP. GEN. 684 (1955).

FINALLY, WE HAVE HELD THAT WHERE THE PROCUREMENT WAS ADVERTISED IN THE COMMERCE BUSINESS DAILY, REMOVAL OF A PROSPECTIVE BIDDER FROM THE BIDDER'S LIST, AND FAILURE TO ADVISE THE PROSPECTIVE BIDDER PERSONALLY OF THE PROCUREMENT DID NOT CONSTITUTE SUFFICIENT JUSTIFICATION FOR CANCELING THE INVITATION. 42 COMP. GEN. 36, 38 (1962). ALSO, SEE B 151005, JUNE 20, 1963.

FOR THE FOREGOING REASONS, WE FIND NO BASIS FOR OBJECTING TO THE PROCEDURES FOLLOWED BY THE NAVY IN CONNECTION WITH THIS PROCUREMENT. ACCORDINGLY, YOUR PROTEST IS DENIED.