B-171052, DEC 11, 1970, 50 COMP GEN 383

B-171052: Dec 11, 1970

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BIDS - ACCEPTANCE TIME LIMITATION - EXTENSION - EFFECT OF REQUEST TO EXTEND THE FACT THAT BIDDERS ARE ASKED TO EXTEND THEIR BID ACCEPTANCE TIME PURSUANT TO PARAGRAPH 2-404.1(C) OF THE ARMED SERVICES PROCUREMENT REGULATION DOES NOT GIVE THE BIDDERS AN OPTION TO WITHDRAW THEIR BIDS. WHICH WAS MADE AFTER CONSULTING WITH THE SMALL BUSINESS REPRESENTATIVE. WAS WITHIN THE POLICY STATED IN PARAGRAPH 1-802 OF THE ARMED SERVICES PROCUREMENT REGULATION. THERE IS NO BASIS FOR THE UNITED STATES GENERAL ACCOUNTING OFFICE TO OBJECT TO THE FAILURE TO SET ASIDE THE PROCUREMENT. 1970: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. THE SUBJECT SOLICITATION FOR THE PROCUREMENT OF 11 LINE ITEMS OF CANNED BARTLETT PEARS WAS ISSUED ON SEPTEMBER 1.

B-171052, DEC 11, 1970, 50 COMP GEN 383

BIDS - ACCEPTANCE TIME LIMITATION - EXTENSION - EFFECT OF REQUEST TO EXTEND THE FACT THAT BIDDERS ARE ASKED TO EXTEND THEIR BID ACCEPTANCE TIME PURSUANT TO PARAGRAPH 2-404.1(C) OF THE ARMED SERVICES PROCUREMENT REGULATION DOES NOT GIVE THE BIDDERS AN OPTION TO WITHDRAW THEIR BIDS, AND A BIDDER WHO DOES NOT EXTEND HIS BID ACCEPTANCE TIME MUST ACCEPT A CONTRACT AWARDED TO HIM PRIOR TO THE EXPIRATION OF HIS INITIAL BID ACCEPTANCE PERIOD; AND AS THE REQUEST FOR THE EXTENSION OF THE BID ACCEPTANCE TIME DOES NOT CONVERT THE FORMALLY ADVERTISED PROCUREMENT INTO A NEGOTIATED PROCUREMENT, BIDDERS MAY NOT BE PERMITTED TO REVISE THEIR BID PRICES WHEN GRANTING AN EXTENSION, FOR THIS WOULD BE TANTAMOUNT TO PERMITTING THEM TO SUBMIT A SECOND BID AFTER BID OPENING CONTRARY TO COMPETITIVE BIDDING PRINCIPLES. CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - SET-ASIDES - COMPETITION SUFFICIENCY THE DETERMINATION NOT TO SET ASIDE ANY PORTION OF A PROCUREMENT, WHICH WAS MADE AFTER CONSULTING WITH THE SMALL BUSINESS REPRESENTATIVE, BECAUSE THE MOST RECENT SET-ASIDE FOR THE SAME ITEM HAD FAILED TO GENERATE SUFFICIENT COMPETITION, WAS WITHIN THE POLICY STATED IN PARAGRAPH 1-802 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION; AND ABSENT A SHOWING OF ABUSE IN THE EXERCISE OF THAT DISCRETION, THERE IS NO BASIS FOR THE UNITED STATES GENERAL ACCOUNTING OFFICE TO OBJECT TO THE FAILURE TO SET ASIDE THE PROCUREMENT.

TO THE NORTHWEST PACKING COMPANY, DECEMBER 11, 1970:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SOLICITATION NO. DSA 13H-70-E-0454, ADDENDUM NO. 16, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT SOLICITATION FOR THE PROCUREMENT OF 11 LINE ITEMS OF CANNED BARTLETT PEARS WAS ISSUED ON SEPTEMBER 1, 1970, WITH A CLOSING DATE OF SEPTEMBER 22, 1970, AND A MINIMUM ACCEPTANCE PERIOD OF 20 DAYS. OCTOBER 9, 1970, BECAUSE OF THE POSSIBILITY THAT EVALUATION OF BIDS WOULD NOT BE COMPLETED WITHIN THE MINIMUM ACCEPTANCE PERIOD, THE CONTRACTING OFFICER REQUESTED THAT BIDDERS EXTEND THE ACCEPTANCE PERIOD FROM OCTOBER 12 TO OCTOBER 16, 1970. WITH THE EXCEPTION OF YOUR FIRM, EXTENSIONS WERE GRANTED BY ALL BIDDERS. EVALUATION WAS COMPLETED BY OCTOBER 16, 1970, AND AWARDS MADE ON OCTOBER 16, 1970, TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDERS. IT IS REPORTED THAT YOU WERE NOT LOW ON ANY OF THE ITEMS ON WHICH YOU BID.

YOUR PROTEST IS BASED ON TWO GROUNDS. FIRST, YOU CONTEND THAT ASKING FOR AN EXTENSION OF THE ACCEPTANCE PERIOD TRANSFORMS AN ADVERTISED PROCUREMENT INTO A NEGOTIATED PROCUREMENT; THAT AS A RESULT THEREOF BIDDERS ARE PERMITTED TO WITHDRAW THEIR BIDS IF DESIRED; AND THAT THE LOW BIDDER IS AFFORDED AN OPPORTUNITY TO USE HIS KNOWLEDGE OF THE BID PRICES TO HIS ADVANTAGE AND TO THE DISADVANTAGE OF ALL OTHER BIDDERS. THEREFORE, YOU CONTEND THAT IF THE PROCUREMENT IS CHANGED TO NEGOTIATION IN THESE RESPECTS, IT SHOULD BE EXPANDED TO ALLOW BIDDERS TO REVISE THEIR PRICES WHEN GRANTING AN EXTENSION. SECOND, YOU CONTEND THAT DENIAL OF YOUR REQUEST TO SET ASIDE A PORTION OF THE PROCUREMENT FOR LABOR SURPLUS AREA CONCERNS WAS CONTRARY TO THE ANNOUNCED POLICY AS STATED IN SECTION VIII OF THE GENERAL PROVISIONS OF DPSC FORM 3020-8. IN THIS CONNECTION, YOU SAY THAT YOU WERE ADVISED THE PROCUREMENT DID NOT LEND ITSELF TO A SET-ASIDE BECAUSE THE QUANTITIES INVOLVED COULD NOT BE DIVIDED INTO ECONOMIC PRODUCTION RUNS. YOU TAKE EXCEPTION TO THAT POSITION, AND CITE TWO PREVIOUS SET-ASIDE PROCUREMENTS AS INDICATING THE INVALIDITY THEREOF.

THE CONTRACTING OFFICER REPORTS THAT THE DECISION TO REQUEST AN EXTENSION OF THE ACCEPTANCE PERIOD WAS BASED UPON THE REALIZATION THAT SHE MIGHT BE PREVENTED FROM MAKING AWARDS WITHIN THE ORIGINAL ACCEPTANCE PERIOD DUE TO DIFFICULTIES IN OBTAINING FREIGHT RATES NECESSARY TO EVALUATE THE BIDS IN ACCORDANCE WITH THE TERMS OF THE SOLICITATION.

ALTHOUGH THE STATUTE GOVERNING PROCUREMENT BY FORMAL ADVERTISING CONTEMPLATES THAT THE AWARD OF ANY CONTRACT WILL BE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, IT DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED OR REQUIRE THAT AN AWARD BE MADE WITHIN THE TIME OF BID ACCEPTANCE SPECIFIED IN THE BID. 10 U.S.C. 2305(C); 42 COMP. GEN. 604 (1963). IN THIS CONNECTION, ARMED SERVICES PROCUREMENT REGULATION 2- 404.1(C) PROVIDES THAT IN ORDER TO AVOID READVERTISEMENTS WHERE ADMINISTRATIVE DIFFICULTIES ARE ENCOUNTERED AFTER BID OPENING WHICH MAY DELAY AWARD BEYOND BIDDERS' ACCEPTANCE PERIODS, THE SEVERAL LOWEST BIDDERS SHOULD BE REQUESTED TO EXTEND THE BID ACCEPTANCE PERIOD. IN THE CIRCUMSTANCES OF THIS CASE, IT SEEMS THAT THE EXTENSION OF THE BID ACCEPTANCE PERIOD WAS REQUESTED FOR A VALID REASON.

WHERE A BIDDER HAS LIMITED THE PERIOD WITHIN WHICH HIS BID MAY BE ACCEPTED, HE HAS THE LEGAL RIGHT TO REFUSE AWARD AFTER THAT TIME AND MAY REFUSE TO GRANT AN EXTENSION, THEREBY AVOIDING AN AWARD WHERE, AFTER PRICES ARE EXPOSED, HE FEELS IT TO HIS ADVANTAGE TO DO SO FOR ONE REASON OR ANOTHER. HOWEVER, HE CANNOT WITHDRAW HIS BID WHEN AN EXTENSION IS REQUESTED, AND HE MUST ACCEPT A CONTRACT AWARDED PRIOR TO EXPIRATION OF THE INITIAL ACCEPTANCE PERIOD. IN THESE CIRCUMSTANCES, WE SEE NO BASIS FOR CONCLUDING THAT A FORMALLY ADVERTISED PROCUREMENT IS THEREBY TRANSFORMED INTO A NEGOTIATED PROCUREMENT. THEREFORE, BIDDERS MAY NOT BE PERMITTED TO REVISE THEIR BID PRICES WHEN GRANTING AN EXTENSION, AS THIS WOULD BE TANTAMOUNT TO PERMITTING THEM TO SUBMIT A SECOND BID AFTER BID OPENING CONTRARY TO COMPETITIVE BIDDING PRINCIPLES. B-158182, MARCH 4, 1966, AND CASES CITED.

THE CONTRACTING OFFICER DENIES THAT YOUR REQUEST FOR A LABOR SURPLUS SET- ASIDE WAS REFUSED BECAUSE THE QUANTITIES INVOLVED COULD NOT BE DIVIDED INTO ECONOMIC PRODUCTION RUNS, OR THAT YOU WERE SO INFORMED. SHE REPORTS THAT THE DECISION NOT TO SET ASIDE ANY PORTION OF THE PROCUREMENT WAS MADE AFTER CONSULTATION WITH THE SMALL BUSINESS REPRESENTATIVE BECAUSE THE MOST RECENT SET-ASIDE FOR THE SAME ITEM HAD FAILED TO GENERATE SUFFICIENT COMPETITION, AND VARIOUS PERTINENT DOCUMENTS INDICATED THAT BARLET PEARS WERE IN SHORT SUPPLY. SINCE IT WAS CONSIDERED DOUBTFUL THAT PRICES NO HIGHER THAN THOSE OBTAINABLE FROM OTHER CONCERNS WOULD BE OBTAINED, THE PROCUREMENT WAS NOT CONSIDERED APPROPRIATE FOR A SET-ASIDE WITHIN THE POLICY STATED IN ARMED SERVICES PROCUREMENT REGULATION 1-802. THE DETERMINATION WHETHER A PROCUREMENT SHOULD BE SET ASIDE IS A MATTER WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION. 45 COMP. GEN. 228 (1965). WHERE, AS HERE, THERE IS NO CLEAR SHOWING OF ABUSE OF THE DISCRETION PERMITTED, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO THE FAILURE OF A PROCUREMENT TO BE SET ASIDE.

ACCORDINGLY, YOUR PROTEST IS DENIED.