B-169618, JUL. 21, 1970

B-169618: Jul 21, 1970

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ON BASIS THAT BIDDER WAS PRECLUDED FROM SUBMITTING BID. ALLEGES DIFFICULTY IN OBTAINING SPECIFICATION AMENDMENT FROM CONTRACTING AGENCY SO THAT THERE WAS INSUFFICIENT TIME TO HAVE PRODUCT APPROVED AS REQUIRED MUST HAVE PROTEST DENIED SINCE. ALTHOUGH IT IS REGRETTABLE THAT BIDDER DID NOT RECEIVE DOCUMENTS IN SUFFICIENT TIME TO SUBMIT BID. THERE IS NO EVIDENCE OF ANY INTENT TO EXCLUDE BIDDER FROM PARTICIPATING IN THE PROCUREMENT. JANSSEN: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST ANY AWARD BEING MADE BY THE GENERAL SERVICES ADMINISTRATION PURSUANT TO INVITATION FOR BIDS NO. TO YOUR CONTENTION THAT YOU WERE PRECLUDED FROM SUBMITTING A BID THEREUNDER BECAUSE OF DISCRIMINATION. THE SUBJECT SOLICITATION WAS ISSUED ON MARCH 17.

B-169618, JUL. 21, 1970

CONTRACTS -- FAILURE TO RECEIVE IFB -- DISCRIMINATION DECISION TO BIDDER DENYING PROTEST AGAINST AWARD FOR DETERGENT BACTERIOSTAT BY GSA, ON BASIS THAT BIDDER WAS PRECLUDED FROM SUBMITTING BID. BIDDER WHO, ALLEGES DIFFICULTY IN OBTAINING SPECIFICATION AMENDMENT FROM CONTRACTING AGENCY SO THAT THERE WAS INSUFFICIENT TIME TO HAVE PRODUCT APPROVED AS REQUIRED MUST HAVE PROTEST DENIED SINCE, ALTHOUGH IT IS REGRETTABLE THAT BIDDER DID NOT RECEIVE DOCUMENTS IN SUFFICIENT TIME TO SUBMIT BID, THERE IS NO EVIDENCE OF ANY INTENT TO EXCLUDE BIDDER FROM PARTICIPATING IN THE PROCUREMENT.

TO MR. ARTHUR G. JANSSEN:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST ANY AWARD BEING MADE BY THE GENERAL SERVICES ADMINISTRATION PURSUANT TO INVITATION FOR BIDS NO. FPNGG-Z-70941-A-4-9-70, AND TO YOUR CONTENTION THAT YOU WERE PRECLUDED FROM SUBMITTING A BID THEREUNDER BECAUSE OF DISCRIMINATION.

THE SUBJECT SOLICITATION WAS ISSUED ON MARCH 17, 1970, BY THE PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, FOR A REQUIREMENTS CONTRACT FOR DETERGENT BACTERIOSTAT FOR THE PERIOD JUNE 1, 1970, OR DATE OF AWARD, IF LATER, THROUGH MAY 31, 1971. THE PRODUCT BEING PROCURED IS REQUIRED TO BE IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION-P-D-001397A (GSA/FSS), DATED JUNE 14, 1969, AND INTERIM AMENDMENT 1, DATED FEBRUARY 10, 1970. SEVEN BIDS WERE RECEIVED AND OPENED ON APRIL 9, 1970, AND SONFORD PRODUCTS WAS THE LOW RESPONSIVE BIDDER. AWARD IS BEING HELD IN ABEYANCE.

YOUR CLAIM OF DISCRIMINATION IS BASED PRIMARILY ON YOUR EFFORTS BEGINNING ON JANUARY 26, 1970, TO OBTAIN A COPY OF THE APPLICABLE AMENDMENT TO THE SPECIFICATION AND REFERENCED TEN PAGE DOCUMENT ENTITLED FED. TEST METHOD STD. NO. 536, DESCRIBING DETAILED TEST APPARATUS AND TEST METHODS FOR SOAP AND SOAP PRODUCTS, WHICH YOU DID NOT OBTAIN UNTIL MARCH 17, 1970. YOU CONTEND THAT SINCE IT TAKES APPROXIMATELY THREE MONTHS TO DEVELOP, TEST, AND OBTAIN DEPARTMENT OF AGRICULTURE REGISTRATION, YOU WERE EFFECTIVELY PREVENTED FROM BIDDING. IN SUPPORT OF YOUR CONTENTION OF DISCRIMINATION YOU POINT OUT THAT ON DECEMBER 24, 1969, WHILE IN THE EMPLOY OF SONFORD PRODUCTS, YOU WERE COGNIZANT OF SIX COMPANIES RECEIVING THE SPECIFICATION, AMENDMENT, AND TEST DOCUMENT; THAT WHEN YOU WENT INTO BUSINESS FOR YOURSELF ON JANUARY 26, 1970, YOU WROTE TWO INDIVIDUALS IN GSA REQUESTING THE PACKAGE RECEIVED BY THE SIX COMPANIES; THAT YOU RECEIVED ONE REPLY ON FEBRUARY 10, 1970, BUT NONE OF THE REQUESTED DOCUMENTS; THAT YOU MADE ANOTHER REQUEST ON FEBRUARY 10, 1970, TO A THIRD INDIVIDUAL AND RECEIVED AN "UNDATED HAND SCRIBBLED" REPLY AND RETURN OF YOUR LETTER, BUT NO DOCUMENTS; THAT IN REPLY TO ANOTHER REQUEST OF FEBRUARY 17, 1970, YOU WERE ADVISED BY LETTER DATED MARCH 6, 1970, THAT YOU WOULD HEAR FURTHER BY MARCH 11, 1970; AND THAT ON MARCH 17, 1970, YOU RECEIVED AN UNDATED LETTER ADVISING THAT YOU COULD PROCURE THE DOCUMENTS FROM THE KANSAS CITY BUSINESS SERVICE CENTER. IN ADDITION TO THE FOREGOING, YOU HAVE MADE CERTAIN CHARGES OF IMPROPRIETY ON THE PART OF SOME GSA PERSONNEL IN THEIR DEALINGS WITH ONE OF YOUR COMPETITORS.

IN ITS REPORT TO OUR OFFICE, GSA ACKNOWLEDGES THE SEQUENCE OF EVENTS CONCERNING YOUR REQUESTS FOR THE DOCUMENTS AND CONCLUDES THAT YOUR REQUESTS WERE NOT PROPERLY OR PROMPTLY HANDLED. THEY STATE, HOWEVER, THAT AFTER A THOROUGH INVESTIGATION THEY FIND NO EVIDENCE THAT THERE WAS A DELIBERATE ATTEMPT TO DISCRIMINATE AGAINST YOU. IN THIS REGARD, WE ARE ADVISED THAT THE DEFICIENCIES HAVE BEEN DESCRIBED IN DETAIL TO THE RESPONSIBLE PERSONNEL IN AN EFFORT TO PREVENT A RECURRENCE. IT IS GSA'S POSITION THAT THESE DEFICIENCIES DID NOT PREVENT YOU FROM SUBMITTING A BID. THEIR POSITION IN THIS REGARD IS BASED ON THE FACT THAT THE CHANGES IN THE SPECIFICATION DID NOT REQUIRE DEVELOPMENT OF A NEW PRODUCT, THE TEST REQUIREMENT WAS NOT NEW, AND YOU WERE FAMILIAR WITH FORMULATION OF THE PRODUCT, THE REQUIRED TESTS, AND THE REQUIREMENT FOR APPROVAL BY THE USDA AS A RESULT OF YOUR ASSOCIATION WITH TWO PRODUCERS OF THE PRODUCT.

IN THESE CIRCUMSTANCES, GSA CONTENDS THAT HAD YOU TAKEN PROMPT ACTION UPON RECEIPT OF THE AMENDMENT ON FEBRUARY 17, 1970, YOU WOULD HAVE HAD AMPLE TIME TO RECEIVE USDA APPROVAL BY BID OPENING TIME. IN ADDITION, GSA REPORTS THAT ON APRIL 1, 1970, YOU WERE ADVISED THAT THEY WOULD CONSIDER A REQUEST FOR AN EXTENSION OF THE OPENING DATE IF IT WOULD NOT PREVENT AWARD BY JUNE 1, 1970. HOWEVER, YOUR REQUEST WAS FOR A 90-DAY EXTENSION AND, THEREFORE, UNACCEPTABLE.

YOU WERE FURNISHED A COPY OF THE ADMINISTRATIVE REPORT AND TAKE EXCEPTION TO GSA'S POSITION WITH REGARD TO YOUR ABILITY TO RECEIVE TIMELY USDA APPROVAL. YOU POINT OUT THAT FROM THE DATE OF RECEIPT OF THE AMENDMENT UNTIL BID OPENING WAS 51 DAYS; THAT ON APRIL 2, 1970, YOU REQUESTED USDA APPROVAL; AND THAT ON JUNE 26, 1970, 88 DAYS AFTER THE REQUEST, YOU HAD NOT YET RECEIVED APPROVAL. FURTHERMORE, YOU POINT OUT THAT YOU DID NOT RECEIVE THE TEST DOCUMENT WITH THE AMENDMENT AND THAT YOUR ASSOCIATION WITH THE TWO PRODUCERS WAS NO SUBSTITUTE FOR THE TEST PROCEDURE.

YOUR CHARGE OF IMPROPRIETIES ON THE PART OF GSA PERSONNEL WAS INVESTIGATED BY ITS OFFICE OF AUDITS AND COMPLIANCES. THAT OFFICE CONCLUDED THAT ALTHOUGH CERTAIN ALLEGATIONS YOU MADE WERE TRUE, THE EMPLOYEES WERE NOT GUILTY OF ANY IMPROPRIETY. FURTHER, GSA'S RECORDS FAIL TO SUPPORT YOUR CHARGE THAT A COMPETITOR RECEIVED PREFERENTIAL CONSIDERATION ON EARLIER PROCUREMENTS.

FROM THE RECORD BEFORE US, WE BELIEVE THAT GSA'S FAILURE TO PROMPTLY FURNISH YOU THE DOCUMENTS REPEATEDLY REQUESTED IS NOT EXCUSABLE. FURTHERMORE, WE BELIEVE THAT YOUR ABILITY TO PRODUCE THE ITEM, TEST IT, RECEIVE USDA APPROVAL, AND SUBMIT A TIMELY BID WAS MATERIALLY AFFECTED BY THE LACK OF SUCH DOCUMENTS. CERTAINLY YOUR COMPETITORS WHO RECEIVED THE DOCUMENTS ON DECEMBER 24, 1969, HAD A DISTINCT ADVANTAGE.

ALTHOUGH WE ARE UNCERTAIN AS TO THE CAUSE FOR THE DEFICIENCIES IN HANDLING YOUR REQUESTS, WE ARE UNABLE TO CONCLUDE THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU FROM PARTICIPATING IN THE PROCUREMENT. IN THE ABSENCE OF SUCH INTENT OR PURPOSE OUR OFFICE HAS CONSISTENTLY HELD THAT AN INADVERTENT FAILURE TO FURNISH A COPY OF AN INVITATION FOR BIDS TO A PARTICULAR SUPPLIER DOES NOT CONSTITUTE A SUFFICIENT BASIS TO CANCEL AN INVITATION OR TO QUESTION AN OTHERWISE PROPER AWARD THEREUNDER. 34 COMP. GEN. 684 (1955); B-161241, MAY 8, 1967.

ALTHOUGH IT IS REGRETTABLE THAT YOU DID NOT RECEIVE THE DOCUMENTS IN SUFFICIENT TIME TO PREPARE AND SUBMIT A BID, WE SEE NO BASIS FOR REMEDIAL ACTION BY OUR OFFICE. HOWEVER, AS NOTED ABOVE, GSA HAS TAKEN ACTION WHICH WILL HOPEFULLY PRECLUDE A RECURRENCE OF THIS SITUATION.