B-167921, DEC. 1, 1969

B-167921: Dec 1, 1969

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EVEN THOUGH LOW BIDDER ALLEGED THAT DELETION WAS PRIMARILY TO PREJUDICE ITS BID. SINCE FAILURE TO RECEIVE AMENDMENT IS ANALOGOUS TO SITUATION WHERE PROSPECTIVE BIDDER IS NOT FURNISHED COPY OF INVITATION AND RECONSIDERATION AFTER BID OPENING WOULD CHANGE BASIS FOR BIDDING BY ADDING METHOD NOT AVAILABLE AT THAT TIME AND WOULD BE DETRIMENTAL TO INTEGRITY OF COMPETITIVE BIDDING SYSTEM. IN ABSENCE OF BAD FAITH ON PART OF PROCURING ACTIVITY NO BASIS EXISTS TO ASSUME THAT DELETION OF BID METHOD WAS FOR REASONS OF PREJUDICE. INCORPORATED: REFERENCE IS MADE TO THE LETTERS OF SEPTEMBER 19. THE PROCUREMENT WAS FOR A QUANTITY OF 178. AMENDMENT NO. 0001 WAS ISSUED ON AUGUST 12. AMENDMENT NO. 0002 WAS ISSUED ON AUGUST 28.

B-167921, DEC. 1, 1969

SPECIFICATIONS--CHANGES, REVISIONS, ETC.--AMENDMENT NOT RECEIVED RECEIPT OF INVITATION AMENDMENT ONE DAY BEFORE BID OPENING DATE WHICH DELETED ALTERNATIVE BID METHOD USED BY LOW BIDDER AND CAUSED BID NOT TO BE CONSIDERED, EVEN THOUGH LOW BIDDER ALLEGED THAT DELETION WAS PRIMARILY TO PREJUDICE ITS BID, DOES NOT JUSTIFY REINSTATING ALTERNATE METHOD OR CANCELING INVITATION, SINCE FAILURE TO RECEIVE AMENDMENT IS ANALOGOUS TO SITUATION WHERE PROSPECTIVE BIDDER IS NOT FURNISHED COPY OF INVITATION AND RECONSIDERATION AFTER BID OPENING WOULD CHANGE BASIS FOR BIDDING BY ADDING METHOD NOT AVAILABLE AT THAT TIME AND WOULD BE DETRIMENTAL TO INTEGRITY OF COMPETITIVE BIDDING SYSTEM; FURTHER, IN ABSENCE OF BAD FAITH ON PART OF PROCURING ACTIVITY NO BASIS EXISTS TO ASSUME THAT DELETION OF BID METHOD WAS FOR REASONS OF PREJUDICE.

TO INDUSTRIAL MACHINE AND MANUFACTURING COMPANY, INCORPORATED:

REFERENCE IS MADE TO THE LETTERS OF SEPTEMBER 19, 1969, AND NOVEMBER 8, 1969, PROTESTING AGAINST THE REJECTION OF INDUSTRIAL MACHINE'S BID ON INVITATION FOR BIDS NO. 700-70-B-0458, ISSUED ON AUGUST 8, 1969, BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

THE PROCUREMENT WAS FOR A QUANTITY OF 178,640 COILS (CL) CONCERTINA BARBED WIRE, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-C-320C DATED MARCH 13, 1969. AMENDMENT NO. 0001 WAS ISSUED ON AUGUST 12, 1969, TO EXTEND THE OPENING DATE TO SEPTEMBER 5, 1969. AMENDMENT NO. 0002 WAS ISSUED ON AUGUST 28, 1969, TO CORRECT AN ERRONEOUS DATE OF EXHIBIT A AS SET FORTH ON PAGE 16 OF THE SCHEDULE. AMENDMENT NO. 0003 WAS ISSUED ON SEPTEMBER 2, 1969, TO EXTEND THE OPENING DATE TO SEPTEMBER 16, 1969. AMENDMENT NO. 0004 WAS ISSUED ON SEPTEMBER 3, 1969 TO DELETE BID C. AMENDMENT NO. 0005 WAS ISSUED ON SEPTEMBER 5, 1969, TO ADD CERTAIN CLAUSES.

THREE ALTERNATIVE METHODS OF BIDDING WERE AVAILABLE TO BIDDERS UNDER THE INVITATION AS INITIALLY ISSUED WHICH WILL BE REFERRED TO AS BID A, BID B AND BID C. THE FIRST ALTERNATIVE, BID A, SOLICITED BIDS ON THE BASIS THAT NO GOVERNMENT-OWNED PRODUCTION EQUIPMENT WOULD BE FURNISHED. BID B WAS BASED ON THE USE OF SUCH GOVERNMENT-OWNED EQUIPMENT CURRENTLY IN THE BIDDER'S POSSESSION IN PERFORMING OTHER GOVERNMENT CONTRACTS. RENTAL FOR THE GOVERNMENT-OWNED EQUIPMENT UNDER THE BID B ALTERNATIVE WAS TO BE IN ACCORDANCE WITH THE RATES SET FORTH IN SUBPARAGRAPHS (II) OR (III) OF THE ATTACHMENT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-702.12. UNDER BID C THE BIDDER WAS TO BE FURNISHED WITH CERTAIN GOVERNMENT-OWNED EQUIPMENT WHICH WAS STORED BY DCSC IN COLUMBUS, OHIO. RENTAL ON THIS EQUIPMENT WAS TO BE AT THE RATE OF ONE AND ONE-HALF PERCENT OF THE ACQUISITION COST PER MONTH STARTING ON THE DATE OF RECEIPT OF THE EQUIPMENT AND CONTINUING UNTIL PRODUCTION WAS COMPLETED OR THE CONTRACT WAS TERMINATED.

BIDS WERE OPENED ON SEPTEMBER 16, 1969. THE ABSTRACT INDICATES THAT 55 SOURCES WERE SOLICITED AND THAT EIGHT BIDS WERE RECEIVED. TWO BIDDERS BID ON BID A, FIVE BIDDERS BID ON BID B, AND YOUR CONCERN WAS THE ONLY BIDDER ON BID C.

THE CONTRACTING OFFICER HAS ADVISED THAT THE BID C ALTERNATIVE METHOD OF BIDDING WAS DELETED SINCE IT WAS NECESSARY TO ASSURE THE AVAILABILITY OF THE GOVERNMENT-OWNED EQUIPMENT STORED AT DCSC, COLUMBUS, FOR USE UNDER A POTENTIAL CONTRACT WITH THE SMALL BUSINESS ADMINISTRATION (SBA) UNDER THE ACT OF JULY 18, 1958, 72 STAT. 389, AS AMENDED, 15 U.S.C. 637. WE ARE ADVISED BY THE CONTRACTING OFFICER THAT 200,000 COILS OF CONCERTINA BARBED WIRE FOR THE SPRING 1970 REQUIREMENTS HAVE BEEN DESIGNATED FOR PURCHASE FROM SBA UNDER 15 U.S.C. 637.

YOUR BID ON THE BID C ALTERNATIVE AT $7.97 PER COIL WAS LOW. HOWEVER, SINCE THE BID C ALTERNATIVE HAD BEEN DELETED FROM THE INVITATION BY AMENDMENT NO. 0004 AND SINCE YOU DID NOT BID ON EITHER THE BID A OR BID B BASIS, IT WAS DETERMINED THAT YOUR BID COULD NOT BE CONSIDERED. YOU HAVE PROTESTED AGAINST THIS DETERMINATION. IT IS URGED THAT THE RECORD INDICATES THAT BID C WAS DELETED PRIMARILY TO PREJUDICE YOUR CONCERN AND THAT THE BID C ALTERNATIVE SHOULD BE REINSTATED. YOUR LETTER OF NOVEMBER 8, 1969, MAKES THE POINT THAT IF THERE IS A 200,000 COIL REQUIREMENT FOR SBA THIS INDICATES THAT THERE WERE PAST PROCUREMENTS OF THE CONCERTINA BARBED WIRE FOR WHICH YOU WERE NOT SOLICITED. YOUR LETTER ALSO STATES THAT CERTAIN INFORMATION IN THE COPY OF THE CONTRACTING OFFICER'S REPORT, WHICH WAS FURNISHED TO YOU BY OUR OFFICE, WAS BLOCKED OUT.

WITH RESPECT TO WHY YOU WERE NOT FURNISHED WITH COPIES OF ALL OF THE AMENDMENTS TO THE INVITATION, THE CONTRACTING OFFICER'S REPORT STATES AS FOLLOWS: "6. INVESTIGATION REVEALS THAT THROUGH A CLERICAL ERROR INDUSTRIAL DID NOT RECEIVE AMENDMENT NOS. 0002 THROUGH 0005 WHEN ISSUED. INDUSTRIAL IS NOT ON THE BIDDER'S LIST USED FOR THIS INVITATION (CLASS 5660, CATEGORY 7). HOWEVER, THE INVITATION AND AMENDMENT 0001 WERE MAILED TO INDUSTRIAL PURSUANT TO ITS REQUEST IN A LETTER DATED 20 AUGUST 1969. (NOTE: THIS LETTER IS NOT IN THE CONTRACT FILE; INFORMATION AS TO ITS EXISTENCE WAS FURNISHED BY INDUSTRIAL ON 10 OCTOBER 1969.) INDUSTRIAL'S NAME, UNDER NORMAL PROCEDURES, SHOULD HAVE BEEN ADDED TO THE LIST OF THOSE RECEIVING A COPY OF THE INVITATION. THIS WAS NOT DONE IN THIS INSTANCE AND AMENDMENT NOS. 0002 THROUGH 0005 WERE THUS NOT MAILED TO INDUSTRIAL UNTIL 11 SEPTEMBER 1969, AFTER ITS TELEPHONIC REQUEST ON 10 SEPTEMBER 1969.' THE LETTER OF SEPTEMBER 19, 1969, STATES THAT THESE AMENDMENTS WERE RECEIVED BY INDUSTRIAL MACHINE ON SEPTEMBER 15, 1969, WHICH WAS ONE DAY BEFORE BID OPENING.

YOUR PROTEST PRESENTS TWO BASIC LEGAL QUESTIONS. FIRST, WHETHER BID C MAY BE REINSTATED AFTER BID OPENING AND SECOND, WHETHER THE FACTS IN THIS CASE ARE SUCH AS TO REQUIRE THAT ALL BIDS BE REJECTED AND THE PROCUREMENT READVERTISED.

AT THE TIME OF BID OPENING WITH BID C DELETED ONLY BIDS SUBMITTED ON A BID A BASIS OR BID B BASIS COULD BE CONSIDERED UNDER THE AMENDED INVITATION. TO PERMIT BID C TO BE REINSTATED AFTER BID OPENING WOULD IN EFFECT CHANGE THE INVITATION BY ADDING AN ALTERNATIVE BASIS FOR BIDDING WHICH WAS NOT AVAILABLE AT THE TIME OF BID OPENING. IF THIS WERE PERMITTED IT WOULD BE DETRIMENTAL TO THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM; THEREFORE, AS A MATTER OF LAW BID C COULD NOT BE REINSTATED AT THIS TIME. ALSO, AS A PRACTICAL MATTER BID C COULD NOT BE REINSTATED AT THIS TIME SINCE THE GOVERNMENT-OWNED EQUIPMENT WHICH WAS INITIALLY DESIGNATED FOR BID C IS NO LONGER AVAILABLE.

AMENDMENT NO. 0004, WHICH DELETED THE BID C BASIS FOR BIDDING HAD THE SAME NET EFFECT AS IF THE PROCURING ACTIVITY HAD ISSUED A NEW INVITATION FOR BIDS TO PROSPECTIVE BIDDERS. THEREFORE, THE FAILURE TO RECEIVE AMENDMENT NO. 0004, IN THIS CASE, IS ANALOGOUS TO THE SITUATION WHERE A PROSPECTIVE BIDDER IS NOT FURNISHED WITH A COPY OF AN INVITATION FOR BIDS. IN B-164047, JUNE 10, 1968, IT WAS STATED AS FOLLOWS WITH RESPECT TO WHETHER AN INVITATION MUST BE CANCELLED WHERE A PROSPECTIVE BIDDER IS PRECLUDED FROM BIDDING BECAUSE SUCH BIDDER WAS NOT FURNISHED WITH A COPY OF THE INVITATION:

"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. 147515, JANUARY 12, 1962.

"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, AN INADVERTENT FAILURE TO FURNISH TIMELY A COPY OF AN INVITATION TO A PARTICULAR SUPPLIER 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-161241, MAY 8, 1967.'

WITH RESPECT TO YOUR CONTENTION THAT AMENDMENT NO. 0004 WAS ISSUED WITH THE INTENT OF PREJUDICING YOUR CONCERN, IT CANNOT BE ASSUMED THAT THE PROCURING ACTIVITY KNEW PRIOR TO BID OPENING THAT YOU WOULD BID ON THE BID C BASIS, MUCH LESS THAT YOU WOULD BID ONLY ON THAT BASIS. IN THE CIRCUMSTANCES WE FIND NO BASIS TO PRESUME, AS URGED IN YOUR LETTER OF NOVEMBER 8, 1969, THAT THE PROCURING ACTIVITY DELIBERATELY DELETED BID C TO PREJUDICE YOUR CONCERN.

OUR REVIEW OF THE ABSTRACT OF BIDS INDICATES THAT THERE WAS ADEQUATE COMPETITION FOR THIS PROCUREMENT.

IN VIEW OF OUR FINDINGS THAT BAD FAITH ON THE PART OF THE PROCURING ACTIVITY HAS NOT BEEN ESTABLISHED AND THAT THERE WAS ADEQUATE COMPETITION, IT IS OUR CONCLUSION, IN ACCORDANCE WITH OUR PRIOR DECISIONS, THAT THE CANCELLATION OF THIS INVITATION WOULD NOT BE JUSTIFIED.

IT IS REGRETTABLE THAT YOU WERE NOT FURNISHED WITH COPIES OF ALL THE AMENDMENTS TO THE INVITATION AND IN THIS CONNECTION HEADQUARTERS, DEFENSE SUPPLY AGENCY, HAS ADVISED OUR OFFICE THAT IT HAS BEEN EMPHASIZED TO DCSC THAT FIRMS WHICH REQUEST COPIES OF A SOLICITATION SHOULD BE PROMPTLY ADDED TO THE BIDDERS LIST TO ASSURE THAT ANY SUBSEQUENT AMENDMENTS ARE SENT TO SUCH FIRMS.

THE INFORMATION WHICH WAS DELETED FROM THE COPY OF THE CONTRACTING OFFICER'S REPORT THAT WAS FURNISHED TO YOU, DEALT WITH SBA'S EVALUATION OF ITS PROPOSED NEGOTIATED PROCUREMENT UNDER 15 U.S.C. 637. SINCE AWARD HAS NOT BEEN MADE UNDER THE PROPOSED SBA PROCUREMENT WE WERE PROTECTING THE GOVERNMENT'S INTERESTS IN NOT MAKING PUBLIC INFORMATION RESPECTING THE IDENTITY AND PRICES IN ANY PROPOSALS WHICH MAY HAVE BEEN RECEIVED BY SBA. IN ANY EVENT THE DELETED INFORMATION WOULD NOT HAVE ANY SUBSTANTIVE EFFECT ON THE ISSUES IN THIS CASE. THEREFORE, WE DO NOT FIND THAT OUR DELETION FROM THE CONTRACTING OFFICER'S REPORT WAS PREJUDICIAL TO YOUR CONCERN'S PRESENTATION OF ITS PROTEST.

WE HAVE NO INFORMATION TO SUPPORT YOUR ALLEGATION THAT YOU WERE DELIBERATELY PRECLUDED FROM BIDDING ON PRIOR PROCUREMENTS AND THE FACT THAT THERE MAY BE A POTENTIAL REQUIREMENT FOR 200,000 COILS IN THE SPRING OF 1970, DOES NOT ESTABLISH THAT DSA DID NOT FOLLOW PRESCRIBED PROCEDURES IN PAST PROCUREMENTS.