B-168620, FEB. 12, 1970

B-168620: Feb 12, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CURRENT CONTRACTOR WHO ALLEGES THAT CHANGE IN BID DATES UNDER NEW SOLICITATION AND FAILURE OF COMPANY OR SUBSIDIARY TO RECEIVE BIDDING FORMS MAY NOT HAVE SUCH ALLEGATIONS UPHELD TO HAVE CONTRACT PROPERLY AWARDED RESCINDED. INC.: REFERENCE IS MADE TO YOUR LETTER. THE REFERENCED SOLICITATION WAS FOR A REQUIREMENTS CONTRACT FOR FIVE ITEMS OF PORTABLE ELECTRIC ETCHERS AND ONE ITEM OF ELECTRIC ROTARY TOOL KITS FOR THE PERIOD MARCH 1. WHICHEVER IS LATER. IDEAL'S BID WAS LOW AS TO EACH OF THE FIVE ITEMS OF PORTABLE ELECTRIC ETCHERS AND THE CORPORATION RECEIVED THE AWARD FOR THESE ITEMS ON DECEMBER 12. YOUR PRIMARY CONTENTION IS THAT SINCE YOUR WHOLLY OWNED SUBSIDIARY. SHOULD HAVE BEEN SENT BID FORMS FOR THE CONTRACT AWARDED UNDER THE REFERENCED PROCUREMENT.

B-168620, FEB. 12, 1970

BID PROTEST--NOTICE OF SOLICITATION DECISION TO BURGESS VIBROCRAFTERS, INC. DENYING PROTEST AGAINST AWARD FOR PORTABLE ELECTRIC ETCHERS TO IDEAL INDUSTRIES, INC; UNDER INVITATION ISSUED BY GAO. CURRENT CONTRACTOR WHO ALLEGES THAT CHANGE IN BID DATES UNDER NEW SOLICITATION AND FAILURE OF COMPANY OR SUBSIDIARY TO RECEIVE BIDDING FORMS MAY NOT HAVE SUCH ALLEGATIONS UPHELD TO HAVE CONTRACT PROPERLY AWARDED RESCINDED. WHILE PROCURING AGENCY REGRETS THAT PROTESTANT DID NOT RECEIVE NOTICE DUE TO CHANGE TO COMPUTERIZED LISTING IT ACTED IN GOOD FAITH.

TO BURGESS VIBROCRAFTERS, INC.:

REFERENCE IS MADE TO YOUR LETTER, WITH ENCLOSURES, DATED DECEMBER 13, 1969, PROTESTING THE AWARD OF A CONTRACT FOR PORTABLE ELECTRIC ETCHERS TO IDEAL INDUSTRIES, INC; SYCAMORE, ILLINOIS, UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-B8-70695-A-10-14-69, ISSUED BY THE POWERED AND CUTTING TOOLS SECTION, GENERAL SERVICES ADMINISTRATION.

THE REFERENCED SOLICITATION WAS FOR A REQUIREMENTS CONTRACT FOR FIVE ITEMS OF PORTABLE ELECTRIC ETCHERS AND ONE ITEM OF ELECTRIC ROTARY TOOL KITS FOR THE PERIOD MARCH 1, 1970, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH FEBRUARY 28, 1971. IDEAL'S BID WAS LOW AS TO EACH OF THE FIVE ITEMS OF PORTABLE ELECTRIC ETCHERS AND THE CORPORATION RECEIVED THE AWARD FOR THESE ITEMS ON DECEMBER 12, 1969.

YOUR PRIMARY CONTENTION IS THAT SINCE YOUR WHOLLY OWNED SUBSIDIARY, BVI ENGRAVERS, INC; BAYAMON, PUERTO RICO, HOLDS THE PRESENT CONTRACT, EITHER BVI OR YOUR CORPORATION LOCATED AT GRAYSLAKE, ILLINOIS, SHOULD HAVE BEEN SENT BID FORMS FOR THE CONTRACT AWARDED UNDER THE REFERENCED PROCUREMENT. YOU EMPHASIZE THAT HISTORICALLY BID REQUESTS ARE ISSUED IN OCTOBER AND NOVEMBER EACH YEAR FOR AWARDING IN DECEMBER TO COVER REQUIREMENTS FOR THE FOLLOWING YEAR, BUT WHEN YOU INQUIRED IN OCTOBER YOU WERE ADVISED THAT SOLICITATIONS HAD BEEN MAILED IN JULY AND BIDDING WAS CLOSED FOR THE 1970- 71 CONTRACT. YOU FEEL THE COMBINATION OF THE CHANGE OF BID DATES, TOGETHER WITH THE FAILURE OF EITHER YOUR CORPORATION OR YOUR SUBSIDIARY TO RECEIVE BIDDING FORMS, NECESSITATES YOUR PROTESTING THE AWARD OF THE CONTRACT TO IDEAL INDUSTRIES.

THE PROCURING ACTIVITY, IN ACKNOWLEDGING BVI AS THE CURRENT CONTRACTOR FOR THREE OF THE FIVE ITEMS AWARDED IDEAL UNDER THE NEW SOLICITATION, STATES THAT THE SOLICITATION FOR THE CONTRACT BVI CURRENTLY HOLDS WAS FORWARDED TO BVI BY BURGESS VIBROCRAFTERS. WEARE INFORMED BY GSA THAT THE BIDDER'S MAILING LIST WAS COMPUTERIZED IN MID 1968, AND WHEN THIS WAS ACCOMPLISHED BURGESS WAS SENT A NOTICE CONTAINING BOTH BIDDER'S MAILING LIST APPLICATION CODE SHEETS AND BIDDER'S MAILING LIST APPLICATION FORMS. THIS NOTICE CONTAINED A STATEMENT ADVISING BIDDERS THAT "IN THE CASE OF PARENT COMPANIES AND THEIR SUBSIDIARIES, THE APPLICATION SHOULD BE IN THE NAME OF THE ORGANIZATION THAT WILL SUBMIT QUOTATIONS." YOUR CORPORATION RETURNED THE MAILING LIST APPLICATION FORM AND THE CODE SHEET IN AUGUST 1968 AND INDICATED ON BOTH THAT BIDDING FORMS WERE TO BE MAILED TO BURGESS VIBROCRAFTERS, INC. THE FORMS WERE SIGNED BY MR. GEORGE R. BELL, WHOSE SIGNATURE APPEARS ON THE PROTEST LETTER FILED WITH THIS OFFICE. NEITHER FORM WAS BVI, MENTIONED AND THE PROCURING ACTIVITY FEELS THAT SINCE THE FORMS WERE FILED IN THIS MANNER THERE WAS A REASONABLE BASIS TO ASSUME THAT BURGESS DID NOT DESIRE BIDDING FORMS TO BE SENT TO BVI.

THE SOLICITATION FOR BIDS WAS ISSUED ON SEPTEMBER 18, 1969, AND NOT IN JULY 1969, AS YOU HAVE ALLEGED. WE ARE INFORMED BY GSA THAT SINCE BURGESS WAS ON THE COMPUTERIZED MACHINE LISTING IT WAS MAILED A SOLICITATION. THE SOLICITATION WAS SENT TO 244 PROSPECTIVE BIDDERS AND SIX BIDS WERE RECEIVED AS A RESULT THEREOF. IN ADDITION, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY ON SEPTEMBER 29, 1969.

THE AGENCY STATES IT REGRETS THE FACT THAT NEITHER BURGESS NOR BVI RECEIVED COPIES OF THE SOLICITATION, AND IT IS THEIR OPINION BIDDING FORMS SHOULD HAVE BEEN SENT TO BVI, ALONG WITH BURGESS, SINCE BVI WAS THE CURRENT CONTRACTOR. HOWEVER, IT IS THE POSITION OF THE PROCURING ACTIVITY THAT THE RESPONSIBLE AGENCY PERSONNEL ACTED IN GOOD FAITH AT ALL TIMES IN REGARD TO THE SOLICITATION.

CONSIDERING THAT WHEN MR. BELL RETURNED THE APPLICATION CODE SHEET HE INDICATED SOLICITATIONS SHOULD BE SENT TO BURGESS, THAT THE RECORD INDICATES A COPY OF THE SOLICITATION WAS SENT TO BURGESS, AND THAT THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY IN ACCORDANCE WITH SECTION 1-1.003 OF THE FEDERAL PROCUREMENT REGULATIONS, ALONG WITH THE FACT THAT NO EVIDENCE EXISTS OF ANY CONSCIOUS OR DELIBERATE INTENT TO EXCLUDE BURGESS OR ITS SUBSIDIARY FROM PARTICIPATING IN THE PROCUREMENT, WE SEE NO BASIS ON THE PRESENT RECORD TO QUESTION THE ACTIONS TAKEN WITH RESPECT TO THIS PROCUREMENT. IN VERY SIMILAR CIRCUMSTANCES, WE STATED IN A RECENT DECISION:

"IT IS UNFORTUNATE THAT A COPY OF THE INVITATION WAS NOT RECEIVED BY YOU. GSA HAS REPORTED TO US THAT COPIES WERE SENT TO ALL POTENTIAL BIDDERS OF RECORD, THOSE ON GSA PROCUREMENT LISTINGS AS WELL AS THOSE FURNISHED BY THE REQUISITIONING DEPOT. IT IS RECOGNIZED THAT THIS IS NOT CONCLUSIVE EVIDENCE THAT A COPY OF THE INVITATION WAS SENT TO YOU; HOWEVER, IT HAS CONSISTENTLY BEEN OUR POSITION THAT A FAILURE ON THE PART OF THE GOVERNMENT TO SEND A COPY OF AN INVITATION FOR BIDS TO AN INTERESTED FIRM DOES NOT ORDINARILY REQUIRE EITHER A READVERTISEMENT FOR BIDS OR THE ACCEPTANCE OF A BID SUBMITTED AFTER THE TIME FIXED FOR OPENING OF BIDS. 40 COMP. GEN. 126. FURTHER, BASED ON THE PRESENT RECORD, THERE IS NO INDICATION THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER PROSPECTIVE CONTRACTOR FROM PARTICIPATING IN THE PROCUREMENT. EVEN IF THE PROCUREMENT PERSONNEL HAD KNOWN YOU WERE THE CURRENT CONTRACTOR, THIS FACT ALONE WOULD NOT HAVE PLACED THEM ON NOTICE THAT THE ABSENCE OF A BID FROM YOU INDICATED NONRECEIPT OF THE INVITATION OR REQUIRED COMMUNICATION WITH YOU CONCERNING THE ABSENCE OF YOUR BID SINCE IT WAS BELIEVED THAT ALL LISTED PROSPECTIVE BIDDERS HAD BEEN CONTACTED." B 167367, AUGUST 26, 1969.

IN ADDITION TO YOUR COMPLAINTS CONCERNING THE CONTRACT FOR 1970-71, YOU HAVE REQUESTED THIS OFFICE TO REVIEW AND INVESTIGATE SIX CONTRACTS BEGINNING IN 1964 AWARDED FOR SIMILAR ITEMS BY THE SAME POWERED AND CUTTING TOOLS SECTION, GENERAL SERVICES ADMINISTRATION. YOU APPARENTLY BELIEVE THAT SUCH AN INVESTIGATION WILL SHOW THE PROCURING ACTIVITY HAS A STRONG ATTACHMENT TO IDEAL INDUSTRIES, INC; INDICATING A PATTERN OF DISCRIMINATION PRACTICED AGAINST YOUR COMPANY. YOUR RESERVATIONS AS TO THE PROPRIETY OF THE ACTIONS WHICH OCCURRED IN THESE PAST PROCUREMENTS ALSO APPARENTLY CONTRIBUTES TO YOUR BELIEF THAT YOUR CORPORATION WAS DISCRIMINATED AGAINST IN THE PRESENT CASE.

SINCE WE HAVE NO RECORD THAT YOUR CORPORATION SUBMITTED PROTESTS AGAINST SUCH AWARDS AT THE TIME THEY WERE MADE, WE MUST ASSUME THAT YOU DID NOT CONSIDER THE AWARDS IMPROPER OR NEEDED INVESTIGATION AT THE TIME. IT IS AXIOMATIC THAT YOUR PRESENT PROTEST MUST BE JUDGED SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE INSTANT PROCUREMENT. ALTHOUGH WE OFFER NO COMMENT REGARDING THE PROPRIETY OF THE ACTIONS TAKEN IN THESE PAST PROCUREMENTS, AND MUST DECLINE TO INVESTIGATE THE FACTS AND CIRCUMSTANCES INVOLVED AS THEY AFFECT YOUR PRESENT PROTEST (48 COMP. GEN. 323, 325, 326 (1968); 46 ID. 606, 611 (1967) ), WE HAVE REQUESTED THE PROCURING ACTIVITY TO FURNISH ADDITIONAL INFORMATION CONCERNING THESE PAST PROCUREMENTS SO THAT WE MAY DETERMINE IF ANY OTHER ACTION SHOULD BE CONSIDERED BY THIS OFFICE IN REGARD THERETO. IN ANY EVENT, IN ANY FUTURE SOLICITATIONS IN WHICH YOU PARTICIPATE, IF YOU SHOULD FEEL THAT ANY IMPROPRIETY HAS OCCURRED WHICH SHOULD BE BROUGHT TO THE ATTENTION OF THIS OFFICE, A PROTEST SHOULD BE FILED AT THAT TIME.

ACCORDINGLY, ON THE RECORD BEFORE US, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.