B-168591, APRIL 21, 1970, 49 COMP. GEN. 707

B-168591, APRIL 21, 1970, 49 COMP. GEN. 707

BIDDERS -- INVITATION RIGHT -- FAILURE TO SOLICIT BIDS -- AUTOMATED BIDDERS' LIST WHERE A REQUEST FOR PROPOSALS ISSUED UNDER 10 U.S.C. 2304(A)(2) HAD BEEN SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AND HAD BEEN SOLICITED FROM MANY SOURCES, SECURING ADEQUATE COMPETITION AND REASONABLE PRICES, THE FAILURE TO SOLICIT A FIRM ON THE AUTOMATED BIDDERS LIST NEED NOT BE QUESTIONED AS PARAGRAPH 2-205.4 OF THE ARMED SERVICES PROCUREMENT REGULATION AUTHORIZES CONTRACTING OFFICERS TO ROTATE THE USE OF LONG MAILING LISTS TO AVOID EXCESSIVE ADMINISTRATIVE COSTS WHEN JUSTIFIED BY THE SIZE OF THE TRANSACTION, AND THE RECORD EVIDENCES NO INTENT OR PURPOSE TO EXCLUDE THE BIDDER.

TO FRED ISRAEL, APRIL 21, 1970:

REFERENCE IS MADE TO YOUR LETTERS DATED JANUARY 5, AND MARCH 9, 1970, PROTESTING ON BEHALF OF STENCEL AERO ENGINEERING CORPORATION ANY AWARD OF CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA25-70-R-0287, ISSUED BY THE DEPARTMENT OF THE ARMY, FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE REQUEST FOR PROPOSALS FOR 542 PARACHUTE EJECTOR XM 233 ASSEMBLIES WAS ISSUED ON NOVEMBER 7, 1969, WITH THE CLOSING TIME FOR RECEIPT OF PROPOSALS SET FOR 5:00 P.M., EST, NOVEMBER 24, 1969. THE PURCHASE REQUEST CONTAINED AN 02 ISSUE PRIORITY DESIGNATOR WITH MANDATORY DELIVERY REQUIRED ON OR BEFORE APRIL 30, 1970, IN ORDER TO MEET SCHEDULED TEMPERATE CLIMATE PHASE OF THE CHECK TEST AND THE ARCTIC WINTER CLIMATE TESTS. IN VIEW OF THE URGENT CIRCUMSTANCES, THE CONTRACTING OFFICER DETERMINED THAT THE PROPOSED CONTRACT COULD BE NEGOTIATED WITHOUT FORMAL ADVERTISING PURSUANT TO THE PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING PROVIDED AT 10 U.S.C. 2304(A)(2) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202.2(VI). WE ARE ADVISED THAT THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON NOVEMBER 7, 1969.

IT IS REPORTED THAT THE NEGOTIATOR ORIGINALLY SOLICITED FIVE SOURCES KNOWN TO HIM TO BE PRODUCERS OF PROPELLANT ACTUATED DEVICES AND THAT HE WAS UNAWARE THAT STENCEL WAS A POTENTIAL SOURCE OF SUPPLY. IN ADDITION, HE REQUESTED AND RECEIVED THE NAMES OF TWENTY OTHER SOURCES FROM THE AUTOMATED BIDDERS' LIST. WE ARE INFORMED THAT THIS LIST FOR THE ITEM SOLICITED CONTAINS THE NAMES OF SIXTY-SEVEN POTENTIAL SOURCES, AND THAT STENCEL AERO ENGINEERING CORPORATION IS INCLUDED IN THE LIST AS A POTENTIAL SOURCE OF SUPPLY. IN ADDITION TO THE TWENTY-FIVE SOURCES ORIGINALLY SOLICITED, TWENTY-SEVEN OTHER SOURCES REQUESTED COPIES OF THE RFP AS A RESULT OF THE SYNOPSIS IN THE COMMERCE BUSINESS DAILY. A TOTAL OF FIFTY-TWO SOURCES WERE THEREFORE DIRECTLY AND INDIRECTLY SOLICITED FOR THE PROCUREMENT.

IN RESPONSE TO THE SOLICITATION, THREE PROPOSALS WERE RECEIVED AS FOLLOWS: CANADIAN COMMERCIAL CORPORATION (CANADIAN FLIGHT EQUIP- EACH

MENT, LTD.) $110.99 ARNOLT CORPORATION 317.40 I. D. PRECISION COMPONENTS CORPORATION 117.83 THE EVALUATED LOW OFFER WAS RECEIVED FROM CANADIAN COMMERCIAL CORPORATION WHICH WOULD SUBCONTRACT 100 PERCENT WITH CANADIAN FLIGHT EQUIPMENT COMPANY, LTD. ON DECEMBER 2, 1969, CONTRACT NO. DAAA25-70 -C-0304 WAS AWARDED TO CANADIAN COMMERCIAL CORPORATION FOR 542 PARACHUTE EJECTOR XM 233 ASSEMBLIES AT $110.99 EACH FOR A TOTAL AWARD OF $60,156.58.

STENCEL AERO ENGINEERING CORPORATION (STENCEL) CONTENDS THAT THE RFP WAS NOT IN CONFORMANCE WITH ASPR SINCE IT HAD BEEN ASSURED IN WRITING BY THE DEPARTMENT OF THE ARMY THAT IT WOULD BE SOLICITED, AND IT WAS NOT SOLICITED WITH REGARD TO THE SUBJECT PROCUREMENT. IN THIS REGARD, A LETTER DATED OCTOBER 25, 1966, FROM THE FRANKFORD ARSENAL TO STENCEL STATED " *** WHEN PROCUREMENT ACTIVITY IS INSTITUTED ON THIS ITEM, YOUR COMPANY WILL BE INCLUDED AS A SOURCE TO BE SOLICITED." IT IS STATED IN THE ADMINISTRATIVE REPORT THAT THE FOREGOING STATEMENT INDICATES THE ARMY'S INTENTION TO ADD STENCEL TO THE BIDDERS' LIST. WE BELIEVE STENCEL'S LETTER OF NOVEMBER 19, 1969, TO THE FRANKFORD ARSENAL DEMONSTRATES THIS UNDERSTANDING SINCE IT STATES "WE ASKED BACK IN 1966 TO BE PLACED ON YOUR BIDDERS' LIST FOR THIS DEVICE *** ."

AS MENTIONED ABOVE, STENCEL WAS PLACED ON THE AUTOMATED BIDDERS' LIST WHICH CONTAINS SIXTY-SEVEN POTENTIAL SOURCES. IN VIEW OF THE SIZE OF THE LIST AND THE VALUE OF THE PROCUREMENT, THE NEGOTIATOR DECIDED NOT TO SOLICIT THE ENTIRE LIST. THE FAILURE TO SOLICIT ALL FIRMS ON A LONG BIDDERS' LIST IS EXPRESSLY PERMITTED BY ASPR TO AVOID EXCESSIVE ADMINISTRATIVE COSTS. HOWEVER, IN ORDER TO ASSURE THAT ALL FIRMS ON THE LIST WILL EVENTUALLY BE SOLICITED, THE LIST IS ROTATED, ALSO IN ACCORDANCE WITH ASPR. THE PERTINENT PROVISIONS OF ASPR ARE AS FOLLOWS: 2-205.4 EXCESSIVELY LONG BIDDERS MAILING LISTS.

(A) GENERAL. TO PREVENT EXCESSIVE ADMINISTRATIVE COSTS OF A PROCUREMENT, MAILING LISTS SHOULD BE USED IN A WAY WHICH WILL PROMOTE COMPETITION COMMENSURATE WITH THE DOLLAR VALUE OF THE PURCHASE TO BE MADE. AS MUCH OF THE MAILING LIST WILL BE USED AS IS COMPATIBLE WITH EFFICIENCY AND ECONOMY IN SECURING ADEQUATE COMPETITION AS REQUIRED BY LAW. WHERE THE NUMBER OF BIDDERS ON A MAILING LIST IS CONSIDERED EXCESSIVE IN RELATION TO A SPECIFIC PROCUREMENT, THE NUMBERS OF FIRMS TO BE SOLICITED MAY BE REDUCED BY ANY METHOD CONSISTENT WITH THE FOREGOING, INCLUDING THOSE DESCRIBED IN (B) BELOW AND 2-205.6. THE FACT THAT LESS THAN AN ENTIRE MAILING LIST IS USED SHALL NOT IN ITSELF PRECLUDE FURNISHING OF BIDS SETS UPON REQUEST MADE BY CONCERNS NOT INVITED TO BID.

(B) ROTATION OF LISTS. MAILING LISTS MAY BE ROTATED, BUT TO DO SO WILL REQUIRE CONSIDERABLE JUDGMENT AS TO WHETHER THE SIZE OF THE TRANSACTION JUSTIFIES ROTATION. *** BASED ON THE FOREGOING, WE ARE OF THE OPINION THAT USE OF THE AUTOMATED BIDDERS' LIST IN THE SUBJECT PROCUREMENT WAS IN ACCORDANCE WITH APPLICABLE REGULATIONS.

IN B-164047, JUNE 10, 1968, WE STATED AS FOLLOWS:

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. IT IS REPORTED THAT THE CONTRACT PRICE IS SUBSTANTIALLY LOWER THAN THE GOVERNMENT ESTIMATE AND IS CONSIDERED REASONABLE. SINCE IT IS APPARENT THERE WAS NO INTENT OR PURPOSE TO PRECLUDE STENCEL FROM PARTICIPATING IN THIS PROCUREMENT, WE FIND NO BASIS TO QUESTION THE AWARD.

ACCORDINGLY, YOUR PROTEST IS DENIED.