B-168220, NOV. 12, 1969

B-168220, NOV. 12, 1969

BIDDERS--INVITATION RIGHT WHERE DOG REPELLENT CONTRACTOR DID NOT RECEIVE COPY OF CURRENT SOLICITATION AND STATES IT IS PREPARED TO UNDERBID LOW BIDDER UPON READVERTISEMENT OF PROCUREMENT, REQUEST FOR CANCELLATION OF SOLICITATION AND READVERTISEMENT IS DENIED, AS POST OFFICE DEPT. TOOK PROPER STEPS TO SEND SOLICITATION TO FIRM, AND IN ANY EVENT INADVERTENT FAILURE TO SEND SOLICITATION TO INTERESTED FIRM REQUIRES NEITHER READVERTISEMENT NOR LATE ACCEPTANCE OF BID; KNOWLEDGE THAT FIRM WAS CURRENT CONTRACTOR WOULD NOT ALONE HAVE PLACED PROCUREMENT PERSONNEL ON NOTICE THAT ABSENCE OF BID FROM FIRM INDICATED NONRECEIPT OF SOLICITATION OR REQUIRED COMMUNICATION WITH CORPORATION, SINCE RECORD SHOWS COPY HAD BEEN PROCESSED FOR MAILING TO FIRM; AND RECORD EVIDENCES NO INTENTION TO EXCLUDE FIRM FROM PROCUREMENT.

TO LUCAS O-CONNELL, FRIEDMAN AND MANN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1969, PROTESTING ON BEHALF OF XTTRIUM LABORATORIES, INC., AGAINST THE FAILURE OF THE PROCUREMENT OFFICER OF THE POST OFFICE DEPARTMENT TO FURNISH THE CORPORATION A COPY OF SOLICITATION NO. 2075.

THE SOLICITATION WAS ISSUED ON SEPTEMBER 29, 1969, FOR 660,000 FLUID OUNCES OF DOG REPELLENT. THE PROCUREMENT WAS PUBLICIZED IN THE COMMERCE BUSINESS DAILY EDITION OF OCTOBER 6, 1969, AS REQUIRED BY SECTION 1-1.1003 -2 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). IN ADDITION TO THE 17 SOURCES INITIALLY SOLICITED, COPIES OF THE SOLICITATION WERE FURNISHED TO SIX OTHER SOURCES AT THEIR REQUEST. FIVE BIDS WERE RECEIVED AND OPENED ON OCTOBER 20, 1969. BID PRICES RANGED FROM $0.164 TO $0.30 PER FLUID OUNCE, THE LOW BID HAVING BEEN SUBMITTED BY ANIMAL REPELLENTS, INC. NO BID WAS RECEIVED FROM YOUR CLIENT, XTTRIUM LABORATORIES, INC. IT IS REPORTED THAT AN AWARD UNDER THE SUBJECT SOLICITATION IS BEING HELD IN ABEYANCE PENDING A DECISION BY OUR OFFICE ON THE PROTEST OF XTTRIUM.

YOU STATE THAT XTTRIUM RECEIVED LAST YEAR'S CONTRACT FOR FURNISHING DOG REPELLENT IDENTICAL TO THAT COVERED BY SOLICITATION NO. 2075 AND THAT XTTRIUM STATES CATEGORICALLY THAT IT DID NOT RECEIVE A COPY OF THE SUBJECT SOLICITATION. YOU CONTEND THAT IF XTTRIUM HAD RECEIVED A COPY OF THE SOLICITATION, IT WOULD HAVE UNDERBID ANIMAL REPELLENTS AND THAT XTTRIUM IS NOW PREPARED TO BID LESS UPON READVERTISEMENT OF THE PROCUREMENT. YOU REQUEST THAT SOLICITATION NO. 2075 BE CANCELED AND THAT THE PROCUREMENT BE READVERTISED.

IT IS UNFORTUNATE THAT A COPY OF SOLICITATION NO. 2075 WAS NOT RECEIVED BY XTTRIUM. IN VIEW OF YOUR CONTENTION THAT THE POST OFFICE DEPARTMENT HAS NOT SUBMITTED ANY EVIDENCE TO SUPPORT ITS ALLEGATION THAT A COPY OF SOLICITATION NO. 2075 WAS MAILED TO XTTRIUM, REPRESENTATIVES OF OUR OFFICE CONFERRED WITH COGNIZANT OFFICIALS OF THE POST OFFICE DEPARTMENT AND EXAMINED THE PROCUREMENT FILE COVERING THE SOLICITATION IN QUESTION WHICH IS REQUIRED TO BE MAINTAINED BY THE DEPARTMENT PURSUANT TO FPR SEC. 1- 2.204. WE BELIEVE THAT SUCH FILE SUBSTANTIALLY COMPLIES WITH THE PROVISIONS OF FPR SEC. 1-2.204. IN OUR DISCUSSIONS WITH COGNIZANT POST OFFICE OFFICIALS, IT WAS EXPLAINED THAT WHEN AN INVITATION FOR BIDS (IFB) IS ISSUED, AUTOMATIC DATA PROCESSING MACHINES ARE USED TO SCAN THE MASTER BIDDERS' LIST TO ASCERTAIN WHICH FIRMS WOULD BE INTERESTED OR QUALIFIED TO BID ON THE PARTICULAR PROCUREMENT; THAT MAILING LABELS ARE PREPARED AND ATTACHED TO COPIES OF THE IFB FOR DELIVERY TO INTERESTED AND QUALIFIED FIRMS; AND THAT SUCH COPIES ARE THEN MAILED TO SUCH PROSPECTIVE BIDDERS ON THE SAME DATE THE IFB IS ISSUED. ON THE BASIS OF DISCUSSIONS WITH COGNIZANT POST OFFICE OFFICIALS AND EXAMINATION OF THE DEPARTMENT'S FILE ON THE SOLICITATION, WE CANNOT CONCLUDE THAT THE DEPARTMENT DID NOT TAKE PROPER STEPS UNDER ESTABLISHED PROCEDURES TO SEND A COPY OF SOLICITATION NO. 2075 TO XTTRIUM. IN ANY EVENT, EVEN IF THE DEPARTMENT'S FILE ON SOLICITATION NO. 2075 COULD NOT BE REGARDED AS CONCLUSIVELY ESTABLISHING THAT A COPY OF SUCH SOLICITATION WAS, IN FACT, MAILED TO XTTRIUM, IT HAS CONSISTENTLY BEEN OUR POSITION THAT AN INADVERTENT FAILURE ON THE PART OF THE GOVERNMENT TO SEND A COPY OF AN IFB TO AN INTERESTED FIRM DOES NOT REQUIRE EITHER A READVERTISEMENT FOR BIDS, AS REQUESTED BY YOU, OR THE ACCEPTANCE OF A BID SUBMITTED AFTER THE TIME FIXED FOR OPENING OF BIDS. 40 COMP. GEN. 126 (1960). MOREOVER, THE FACT THAT PROCUREMENT PERSONNEL KNEW THAT XTTRIUM WAS THE CURRENT CONTRACTOR WOULD NOT ALONE HAVE PLACED THEM ON NOTICE THAT THE ABSENCE OF A BID FROM THAT FIRM NECESSARILY INDICATED NONRECEIPT OF THE SOLICITATION OR REQUIRED THE CONTRACTING OFFICE TO COMMUNICATE WITH THE CORPORATION CONCERNING ITS FAILURE TO BID, SINCE THE DEPARTMENT'S FILE SHOWED THAT A COPY THEREOF HAD BEEN PROCESSED FOR MAILING TO XTTRIUM. FURTHER, BASED ON THE PRESENT RECORD AND OUR DISCUSSIONS WITH POST OFFICE PERSONNEL, THERE IS NO INDICATION THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE XTTRIUM FROM PARTICIPATING IN THE PROCUREMENT.

ACCORDINGLY, ON THE RECORD BEFORE US, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST. SEE 42 COMP. GEN. 36 (1962); 34 ID. 684 (1955); DECISION B- 167367 DATED AUGUST 26, 1969.