B-169919, NOV. 30, 1970

B-169919, NOV. 30, 1970

BID PROTEST - IMPROPER AWARD - CANCELLATION DENIAL OF PROTEST OF G.A. BRAUN, INC., AGAINST THE AWARD OF ITEM 1 OF A CONTRACT FOR WASHER-EXTRACTOR MACHINES ISSUED BY THE VETERANS ADMINISTRATION, MARKETING DIVISION, MEDICAL SUPPLIES & EQUIPMENT, HINES, ILL., TO PELLERIN MILNOR CORP. THE ITEM 1 SPECIFICATION FOR AN END LOADING 2 OR 3 COMPARTMENT MACHINE IS RECOGNIZED AS RESTRICTIVE IN NOT ALLOWING CONSIDERATION OF BRAUN'S FOUR COMPARTMENT MACHINE IN LIGHT OF THREE OTHER SOLICITATIONS FOR THE IDENTICAL MACHINES WHERE THE RESTRICTIONS ON THE NUMBER OF COMPARTMENTS WERE REMOVED. HOWEVER, SINCE OBJECTION WAS NOT STATED UNTIL 14 DAYS AFTER THE AWARD OF THE CONTRACT AND THE MACHINES HAVE ALREADY BEEN DELIVERED, CANCELLATION OF THE CONTRACT AND READVERTISEMENT ARE NOT IN THE BEST INTEREST OF THE GOVERNMENT.

TO G. A. BRAUN, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 26, 1970, PROTESTING THE AWARD OF ITEM 1 UNDER SOLICITATION NO. M3-60-70, ISSUED BY THE VETERANS ADMINISTRATION (VA), MARKETING DIVISION, MEDICAL SUPPLIES AND EQUIPMENT, HINES, ILLINOIS, TO THE PELLERIN MILNOR CORPORATION.

THE SOLICITATION, ISSUED ON APRIL 7, 1970, WITH A SCHEDULED MAY 11, 1970, BID OPENING, CALLED FOR BIDS UNDER THREE ITEMS OF COMMERCIAL WASHER- EXTRACTOR COMBINATION MACHINES FOR INSTALLATION AT THE VETERANS ADMINISTRATION HOSPITAL IN NORTHAMPTON, MASSACHUSETTS. THE SOLICITATION SPECIFICATIONS COVERING ITEM 1, AS AMENDED, REQUIRED THAT THE MACHINE HAVE THE FOLLOWING CHARACTERISTICS:

"END OF SIDE LOADING,

END LOADING, 2 OR 3 COMPARTMENTS.

SIDE LOADING, 2, 3 OR 4 COMPARTMENTS." ON JUNE 30, 1970, YOUR FIRM WAS AWARDED ITEMS 2 AND 3 OF THE SOLICITATION. HOWEVER, VA DETERMINED THAT YOUR LOW BID ON ITEM 1 WAS NONRESPONSIVE TO THE TERMS OF THE SOLICITATION SINCE YOUR FIRM OFFERED AN END LOADING MACHINE WITH FOUR COMPARTMENTS, RATHER THAN THE REQUIRED TWO OR THREE COMPARTMENTS.

BY LETTER DATED JULY 13, 1970, YOU PROTESTED TO VA AGAINST THE ALLEGED RESTRICTIVE NATURE OF THE ABOVE-QUOTED SPECIFICATION WHICH YOU CONTEND SHOULD HAVE BEEN DRAFTED TO ALLOW YOUR FIRM TO OFFER A FOUR COMPARTMENT MACHINE. IN SUPPORT OF THIS CONTENTION, YOU REFER TO OTHER VA SOLICITATIONS FOR THE PURCHASE OF MACHINES IDENTICAL TO THOSE COVERED BY ITEM 1 WHEREIN THE SPECIFICATIONS PERMITTED BIDDERS TO OFFER A FOUR COMPARTMENT MACHINE IN ADDITION TO THE TWO AND THREE COMPARTMENT MODELS.

IN A REPORT TO OUR OFFICE ON THE PROTEST, VA STATES THAT "IT NOW APPEARS THAT SOLICITATION NO. M3-60-70 SHOULD HAVE BEEN CANCELLED AND THE PROCUREMENT READVERTISED." THE REPORT NOTES THAT AT LEAST THREE OTHER SOLICITATIONS FOR THE IDENTICAL MACHINES AT VARIOUS LOCATIONS WERE BEING PROCESSED BY THE HINES, ILLINOIS ACTIVITY, AND THAT RESTRICTIONS ON THE NUMBER OF COMPARTMENTS WERE REMOVED ON THOSE SOLICITATIONS SUBSEQUENT TO MAY 25, 1970, OR AFTER THE BID OPENING ON THE INSTANT PROCUREMENT. APPEARS THAT AN UNINTENTIONAL ADMINISTRATIVE OVERSIGHT RESULTED IN A FAILURE TO REMOVE THE RESTRICTIVE COMPARTMENT SPECIFICATION FROM THE INSTANT PROCUREMENT, AND, THEREFORE, THE REPORT STATES "THE AWARD WAS MADE ON THE ONLY BASIS IT COULD HAVE BEEN UNDER THE SOLICITATION, I.E., TO THE LOWEST RESPONSIVE BIDDER."

HAD THIS MATTER BEEN BROUGHT TO OUR ATTENTION PRIOR TO AWARD OF THE CONTRACT, OUR OFFICE WOULD HAVE REQUIRED CANCELLATION OF THE SOLICITATION AND A READVERTISEMENT OF THE GOVERNMENT'S REQUIREMENTS UNDER PROPER SPECIFICATIONS. HOWEVER, WE NOTE THAT YOU DID NOT ADVISE VA OF YOUR OBJECTION TO THE SPECIFICATION UNTIL 14 DAYS AFTER THE AWARD OF THE CONTRACT. IN ADDITION, IT APPEARS THAT THE CONTRACTING OFFICIALS ACTED IN GOOD FAITH IN MAKING THE AWARD UNDER A SOLICITATION WHICH GENERATED ADEQUATE COMPETITION. IN VIEW OF THESE CIRCUMSTANCES, AND SINCE DELIVERY OF THE MACHINES APPARENTLY HAS BEEN ACCOMPLISHED, CANCELLATION OF THE CONTRACT WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. ALSO, VA ADVISES THAT MEASURES HAVE BEEN TAKEN TO AVOID A RECURRENCE OF THESE CIRCUMSTANCES IN THE FUTURE.

ON THE RECORD BEFORE US, WE BELIEVE THAT THE BEST INTEREST OF THE GOVERNMENT WILL NOT BE SERVED BY TERMINATION OF THE CONTRACT. SEE 43 COMP. GEN. 761 (1964); 40 COMP. GEN. 160 (1960); 15 COMP. GEN. 365 (1935); AND B-159692, NOVEMBER 7, 1966.

ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN BY OUR OFFICE WITH RESPECT TO THIS PROCUREMENT.