B-167928, DEC. 8, 1969

B-167928, DEC. 8, 1969

BIDS--LATE--FAILURE TO RECEIVE AMENDED INVITATION BIDDER UNDER INVITATION AMENDED TO SUPPLY OMISSION, WITH BID OPENING DATE EXTENDED, WHO WAS SOLICITED UNDER ORIGINAL INVITATION AND CLAIMS NONRECEIPT OF AMENDMENT AND LACK OF NOTICE OF NEW OPENING DATE, OFFERS NO LEGAL BASIS FOR PROTEST SINCE STATEMENTS OF GOVERNMENT'S REPRESENTATIVES - - HERE DISPUTING PROTESTANT'S LACK OF VERBAL NOTICE -- WILL BE ACCEPTED OVER CONFLICTING STATEMENTS OF OTHER PARTY ABSENT EVIDENCE CLEARLY REQUIRING CONTRARY CONCLUSION. MOREOVER, BIDDER'S FAILURE TO RECEIVE INVITATION OR AMENDMENT DOES NOT ORDINARILY REQUIRE RESOLICITATION OR CONSIDERATION OF LATE BIDS. RESPECTING ALLEGATION OF UNREASONABLY LOW PRICES, NO KNOWN LEGAL PRINCIPLE PRECLUDES AWARD ON BASIS OF UNPROFITABLE PRICE, AND DETERMINATION OF PRICE REASONABLENESS IS PRIMARY RESPONSIBILITY OF CONTRACTING AGENCY.

TO SWAN, KEENEY AND JENCKES:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 16 AND 24, 1969, WITH ENCLOSURES, PROTESTING IN BEHALF OF CLEAN SHOP TOWEL COMPANY, INC. AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. BO-C-I- 11423-70, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, REGION 1.

THE ABOVE SOLICITATION, ISSUED ON AUGUST 13, 1969, WAS FOR A FEDERAL SUPPLY SCHEDULE CONTRACT COVERING THE RENTAL OF WIPING CLOTHS AND CHEMICALLY TREATED DUST AND SWEEPING CLOTHS, MOPS AND ACCESSORIES FOR THE PERIOD OCTOBER 1, 1969, THROUGH SEPTEMBER 30, 1970, FOR DESIGNATED SERVICE AREAS IN CONNECTICUT, MAINE, MASSACHUSETTS, NEW HAMPSHIRE, RHODE ISLAND, AND VERMONT. THE BID OPENING DATE WAS AUGUST 28, 1969.

ACCORDING TO THE ADMINISTRATIVE REPORT, WHEN COPIES OF THE PRINTED SOLICITATION WERE DELIVERED TO THE REGIONAL PROCUREMENT OFFICE, THE CONTRACTING OFFICER NOTICED THAT ITEMS BEARING INDEX NUMBERS 1 THROUGH 44 HAD BEEN OMITTED FROM THE SOLICITATION. HE THEREUPON PREPARED AN AMENDMENT ADDING THOSE ITEMS AND EXTENDING THE BID OPENING TO SEPTEMBER 4, 1969. DURING THE PERIOD OF AUGUST 18-19, A NUMBER OF PROSPECTIVE BIDDERS, INCLUDING A REPRESENTATIVE FROM CLEAN SHOP, CONTACTED THE CONTRACTING OFFICER TO ADVISE HIM OF THE ERROR. WITH RESPECT TO THE CALL WHICH MR. GOULD, IN HIS AFFIDAVIT OF SEPTEMBER 15, 1969, DESCRIBED AS HAVING OCCURRED ON AUGUST 22, 1969, THE CONTRACTING OFFICER STATES THAT CLEAN SHOP'S REPRESENTATIVE (MR. GOULD) WAS ADVISED THAT AN AMENDMENT WOULD BE SENT OUT RECTIFYING THE ERROR AND EXTENDING THE BID OPENING DATE TO SEPTEMBER 4, 1969. ALTHOUGH ACCORDING TO MR. GOULD'S AFFIDAVIT OF SEPTEMBER 15 HE WAS INFORMED ONLY THAT THE NEW BID OPENING DATE WOULD BE LATER IN SEPTEMBER, THE CONTRACTING OFFICER'S STATEMENT IS THAT MR. GOULD WAS ALSO ADVISED THAT IF HE DID NOT RECEIVE THE AMENDMENT BY AUGUST 22, HE SHOULD CONTACT THE CONTRACTING OFFICER. AMENDMENT NO. 1 WAS ISSUED ON AUGUST 20, 1969, AND ACCORDING TO THE OFFICE RECORD WAS MAILED TO EACH PROSPECTIVE BIDDER, INCLUDING CLEAN SHOP. THE CONTRACTING OFFICER RECEIVED NO FURTHER COMMUNICATION FROM CLEAN SHOP PRIOR TO BID OPENING ON SEPTEMBER 4, 1969. SIX BIDS WERE RECEIVED AND ALL BIDDERS ACKNOWLEDGED RECEIPT OF AMENDMENT NO. 1. IT WAS NOT UNTIL SEPTEMBER 8, 1969, THAT MR. GOULD OF CLEAN SHOP CONTACTED THE CONTRACTING OFFICER AND STATED THAT CLEAN SHOP HAD NOT RECEIVED THE AMENDMENT.

IT IS YOUR CONTENTION THAT SINCE CLEAN SHOP DID NOT RECEIVE AMENDMENT NO. 1, AND THE AMENDMENT WAS NOT ADVERTISED, THE PROCUREMENT SHOULD BE REOPENED AND CLEAN SHOP GIVEN AN OPPORTUNITY TO BID.

WHILE IT IS UNFORTUNATE THAT CLEAN SHOP DID NOT RECEIVE THE AMENDMENT, THE ADMINISTRATIVE REPORT INDICATES THAT, IN ADDITION TO THE ROUTINE MAILING THEREOF, CLEAN SHOP WAS ADVISED BY TELEPHONE OF THE AMENDMENT AND THE NEW OPENING DATE, AND WAS ADVISED TO AGAIN CONTACT THE CONTRACTING OFFICER IF IT DID NOT RECEIVE THE AMENDMENT BY AUGUST 22. EVEN IN THE ABSENCE OF SUCH ADVICE WE FEEL THAT ORDINARY PRUDENCE WOULD HAVE CALLED FOR THE MAKING OF SOME FURTHER INQUIRY BY AUGUST 28, THE ORIGINALLY STATED OPENING DATE.

WE RECOGNIZE THAT THERE IS SOME CONFLICT IN THE RECORD AS TO WHETHER THE CONTRACTING OFFICER GAVE MR. GOULD THE EXACT DAY OF THE BID OPENING OR WHETHER HE MERELY STATED THAT IT WOULD BE LATER IN SEPTEMBER. HOWEVER, WE FOLLOW THE RULE THAT IN SUCH A CASE THE FACTUAL STATEMENTS OF THE GOVERNMENT'S REPRESENTATIVES WILL BE ACCEPTED IN PREFERENCE TO CONFLICTING STATEMENTS OF THE OTHER PARTY IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. B-161896, SEPTEMBER 1, 1967; 37 COMP. GEN. 568; 41 ID. 266, 269. SUCH EVIDENCE HAS NOT BEEN FURNISHED IN THIS CASE. MOREOVER, THIS OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE OF A BIDDER TO RECEIVE AN INVITATION FOR BIDS OR A COPY OF AN AMENDMENT TO THE INVITATION DOES NOT ORDINARILY REQUIRE EITHER A RESOLICITATION OF BIDS OR CONSIDERATION OF A BID OR MODIFICATION RECEIVED AFTER THE TIME FIXED FOR OPENING OF BIDS. B 161896, SEPTEMBER 1, 1969; B-154580, JULY 8, 1964; 40 COMP. GEN. 126, 128. ON THE PRESENT RECORD, THERE IS NO INDICATION THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY PROSPECTIVE CONTRACTOR FROM PARTICIPATION IN THE PROCUREMENT.

CONCERNING YOUR CONTENTION THAT AMENDMENT NO. 1 SHOULD HAVE BEEN ADVERTISED, THE TERM ,ADVERTISED," AS APPLIED TO PROCUREMENT OF PROPERTY OR SERVICES BY THE GOVERNMENT, MEANS PROCUREMENT BY COMPETITIVE BIDS AND AWARDS, AS OPPOSED TO PROCUREMENT BY NEGOTIATION. THIS INVOLVES PREPARATION OF THE INVITATION FOR BIDS; PUBLICIZING IT BY DISTRIBUTION TO PROSPECTIVE BIDDERS, POSTING IN PUBLIC PLACES AND SUCH OTHER MEANS AS MAY BE APPROPRIATE, IN SUFFICIENT TIME TO ENABLE PROSPECTIVE BIDDERS TO PREPARE AND SUBMIT BIDS BEFORE THE TIME SET FOR OPENING; AND AWARD OF A CONTRACT AFTER PUBLIC OPENING (SEE SECTION 1 2.101 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) (. IN THE PRESENT CASE THE SOLICITATION WAS NOT ONLY DISTRIBUTED TO SEVERAL BIDDERS, BUT WAS ALSO PUBLICIZED BY A SYNOPSIS IN THE COMMERCE BUSINESS DAILY PURSUANT TO FPR 1-2.203-4. AS TO AMENDMENTS ISSUED AFTER ADVERTISING OF THE ORIGINAL SOLICITATION, FPR 1- 2.207 REQUIRES ONLY THAT THE AMENDMENT SHALL BE SENT TO EACH CONCERN TO WHOM THE INVITATION FOR BIDS HAS BEEN FURNISHED, AND SHALL BE DISPLAYED IN THE BID ROOM. ON THE FACTS REPORTED IN THIS CASE WE FAIL TO SEE HOW CLEAN SHOP WAS PREJUDICED BY THE PROCURING ACTIVITY'S FAILURE TO "ADVERTISE" THE AMENDMENT MORE EXTENSIVELY. SINCE IT RECEIVED A COPY OF THE ORIGINAL SOLICITATION, AND ORAL ADVICE THAT AN AMENDMENT WOULD BE ISSUED, IN OUR VIEW IT WAS THEREBY PUT UPON INQUIRY AS TO THE NEW DATE OF OPENING IF IT FAILED TO RECEIVE THAT INFORMATION PRIOR TO THE DATE ORIGINALLY SET.

IN ITS AFFIDAVIT OF SEPTEMBER 15 CLEAN SHOP ALLEGES THAT COYNE INDUSTRIAL LAUNDRIES (COYNE) BID UNDER COST IN CERTAIN AREAS IN ORDER TO PREVENT CLEAN SHOP FROM RECEIVING AWARD. HOWEVER, THE RECORD SHOWS THAT ITS BID PRICES WERE, IN GENERAL, SLIGHTLY HIGHER THAN THOSE PAID BY THE GOVERNMENT UNDER THE PREVIOUS YEAR'S CONTRACT. IN ADDITION, COYNE VERIFIED ITS BID FIGURES AS CORRECT PRIOR TO AWARD, AND THE PROCURING ACTIVITY ADVISED US THAT THEY CONSIDERED COYNE'S BID PRICES REASONABLE. SINCE IT HAS BEEN HELD BY OUR OFFICE THAT THE CONTRACTING AGENCY HAS THE PRIMARY RESPONSIBILITY OF DETERMINING WHETHER A BID PRICE IS REASONABLE, WE FIND NO BASIS FOR LEGAL OBJECTION TO THE DETERMINATION OF PRICE REASONABLENESS IN THIS INSTANCE. B-166012, APRIL 3, 1969; 44 COMP. GEN. 27, 32. EVEN ASSUMING THAT COYNE'S BID PRICES FOR SOME AREAS WERE BELOW COST, WE ARE AWARE OF NO LEGAL PRINCIPLE ON THE BASIS OF WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE. B 158143, MARCH 4, 1966; B-154750, NOVEMBER 17, 1964.

SINCE WE FIND NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTIONS TAKEN WITH RESPECT TO YOUR BID, YOUR PROTEST IS DENIED.