B-168173, FEB. 2, 1970

B-168173: Feb 2, 1970

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WHERE NEGOTIATED AWARD UNDER PUBLIC EXIGENCY PROVISIONS IN 41 U.S.C. 252 (C) (2) WAS MADE TO LOW OFFEROR AFTER OTHER OFFERORS WERE DETERMINED NOT TO BE IN THE COMPETITIVE RANGE. 500 PURCHASE LIMIT IS NOT FOR APPLICATION. THEREFORE PROTESTANT DID NOT HAVE TO BE AFFORDED NEGOTIATION OPPORTUNITY. INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15. IN YOUR LETTER YOU STATE THAT: "WE HAVE SINCE BEEN ADVISED THAT THE AWARD WAS MADE TO VIDA BAG CO. SINCE IT WAS ALWAYS OUR UNDERSTANDING THAT THE ALLOWABLE PURCHASE LIMIT ON A BID OF THIS KIND WAS $2500.00. WE WERE NOT PERMITTED TO NEGOTIATE ON IT. THE SUBJECT REQUEST FOR QUOTATIONS WAS ISSUED JULY 16. THIS PROCUREMENT WAS NEGOTIATED UNDER THE AUTHORITY OF SECTION 302 (C) (2) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949.

B-168173, FEB. 2, 1970

BID PROTEST--NEGOTIATION--COMPETITIVE RANGE DECISION TO CHICAGO TRANSPORT, INC. DENYING PROTEST AGAINST NEGOTIATED AWARD TO LOW OFFEROR FOR FURNISHING PLASTIC BAGS TO GENERAL SERVICES ADMINISTRATION AND OTHER AGENCIES. WHERE NEGOTIATED AWARD UNDER PUBLIC EXIGENCY PROVISIONS IN 41 U.S.C. 252 (C) (2) WAS MADE TO LOW OFFEROR AFTER OTHER OFFERORS WERE DETERMINED NOT TO BE IN THE COMPETITIVE RANGE, THE $2,500 PURCHASE LIMIT IS NOT FOR APPLICATION. THEREFORE PROTESTANT DID NOT HAVE TO BE AFFORDED NEGOTIATION OPPORTUNITY.

TO CHICAGO TRANSPARENT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. TB5988, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, AUBURN, WASHINGTON.

IN YOUR LETTER YOU STATE THAT:

"WE HAVE SINCE BEEN ADVISED THAT THE AWARD WAS MADE TO VIDA BAG CO; GLENDALE CALIFORNIA FOR $4432.20. SINCE IT WAS ALWAYS OUR UNDERSTANDING THAT THE ALLOWABLE PURCHASE LIMIT ON A BID OF THIS KIND WAS $2500.00, AND WE WERE NOT PERMITTED TO NEGOTIATE ON IT, WE REQUESTED OF THE CONTRACTING OFFICER, MR. KELLOGG, ADVICE AS TO THE PURCHASING AUTHORITY FOR A SUM IN EXCESS OF THAT FIGURE, IN THE ABSENCE OF NEGOTIATION."

THE SUBJECT REQUEST FOR QUOTATIONS WAS ISSUED JULY 16, 1969, TO COVER THE PROCUREMENT OF 996 BOXES OF POLYETHYLENE PLASTIC BAGS (FSN 8105-145-0086) FOR THE GSA STORES STOCK SYSTEM, TO BE USED BY THE VETERANS ADMINISTRATION AND OTHER AGENCIES. BECAUSE OF THE URGENT NEED FOR SUCH BAGS, THIS PROCUREMENT WAS NEGOTIATED UNDER THE AUTHORITY OF SECTION 302 (C) (2) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (2). THAT STATUTORY AUTHORITY SETS FORTH ONE OF THE EXCEPTIONS TO THE REQUIREMENTS FOR FORMAL ADVERTISING AND PROVIDES THAT CONTRACTS MAY BE NEGOTIATED WHEN "THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING."

THE RECORD SHOWS THAT NEGOTIATION WAS BASED ON A DETERMINATION ISSUED BY THE CONTRACTING OFFICER ON JUNE 18, 1969, "THAT THIS REQUIREMENT MAY BE NEGOTIATED PURSUANT TO PUBLIC EXIGENCY PROVISIONS OF 302 (C) (2), PL 152, 81ST CONGRESS, AS AMENDED, AND AS AUTHORIZED BY GSPR (GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATION) 5A 72.105-30 AND 31." IN THIS RESPECT, THE FINDINGS AND JUSTIFICATION FOR NEGOTIATION WERE BASED ON THE FOLLOWING FACTORS:

"A. THE REQUIREMENT CANNOT BE OBTAINED FROM A CURRENT TERM CONTRACT OR OTHER ESTABLISHED SOURCE.

"B. THE REQUIREMENT IS FOR A STOCK ITEM WHICH HAS A STEADY REQUIREMENT.

"C. EXCEPTIONALLY HEAVY AND SUDDEN DEMANDS HAVE DEPLETED STOCKS TO THE EXTENT THAT A SUBSTANTIAL VOLUME OF BACK ORDERS WILL RESULT UNLESS REPLENISHMENT MERCHANDISE IS PROCURED WITHIN LESS TIME THAN EVEN THE MINIMUM REQUIRED FOR FORMAL ADVERTISING."

THREE FIRMS FURNISHED QUOTATIONS PURSUANT TO THE RFQ. THE VIDA BAG COMPANY, INC; WAS THE LOW OFFEROR AT $4,432.20 AND CHICAGO TRANSPARENT, INC; WITH AN OFFER OF $5,976 WAS SECOND LOW. THE FRIEDMAN BAG CO. SUBMITTED THE THIRD LOWEST OFFER AT $6,573.60. HOWEVER, BECAUSE THE OTHER OFFERS WERE SUBSTANTIALLY HIGHER THAN VIDA'S, THE CONTRACTING OFFICER DID NOT CONSIDER THEM TO BE WITHIN A COMPETITIVE RANGE AND, IN LIGHT OF THE PROVISIONS OF SECTION 1-3.805-1 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), CONTRACT NO. GS-10S-27730 WAS AWARDED TO VIDA ON AUGUST 8, 1969, AT ITS OFFERED PRICE. WHILE THE AUTHORITY FOR NEGOTIATION SHOWN ON THE CONTRACT WAS ERRONEOUSLY STATED TO BE 41 U.S.C. 252 (C) (10), THIS CLERICAL ERROR WAS CORRECTED BY LATER MODIFICATION TO SHOW NEGOTIATION IN ACCORDANCE WITH 41 U.S.C. 252 (C) (2).

WITH REGARD TO YOUR REFERENCE TO A "$2500 PURCHASE LIMIT," IT SHOULD BE NOTED THAT WHILE NEGOTIATION IS REQUIRED IN THE CASE OF PROCUREMENTS EXCEEDING $2,500, AS STATED ABOVE NEGOTIATION OPPORTUNITY NEED NOT BE EXTENDED TO OFFERORS WHOSE PRICE IS NOT WITHIN A COMPETITIVE RANGE. THE CONTRACTING OFFICER DETERMINED THAT YOUR OFFER WAS TOO HIGH TO BE CONSIDERED WITHIN A COMPETITIVE RANGE IN VIEW OF THE AMOUNT OF THE LOW OFFER. HENCE, HE WAS NOT REQUIRED TO AFFORD YOU A NEGOTIATION OPPORTUNITY. WHETHER A PROPOSAL IS WITHIN A COMPETITIVE RANGE FOR NEGOTIATION PURPOSES IS A MATTER OF DISCRIMINATING ADMINISTRATIVE JUDGMENT WHICH WE ORDINARILY DO NOT DISTURB. 48 COMP. GEN. 314, 317-318 (1968).

ACCORDINGLY, AND SINCE AWARD WAS MADE TO THE LOWEST PRICED OFFEROR, YOUR PROTEST IS DENIED.