B-171406, JUL 2, 1971

B-171406: Jul 2, 1971

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CANNOT CONCLUDE THAT THE ACTIONS TAKEN BY THE GSA WERE MOTIVATED BY A DESIRE TO DELIBERATELY PRECLUDE PROTESTANT FROM THE AWARDS. THE DECISION TO MODIFY REQUIREMENTS AND READVERTISE FOR BIDS WAS PROPER WHERE NO OFFEROR COULD MEET THE LEAKAGE TESTING REQUIREMENT AND THERE IS NO EVIDENCE THAT THE ERRONEOUS DETERMINATION CONCERNING RESPONSIVENESS OF PROTESTANT'S BID WAS OTHER THAN A BONA FIDE ERROR IN JUDGEMENT. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3. WHICH WAS ISSUED ON DECEMBER 15. THE REGIONAL OFFICE DETERMINED THAT YOUR BID WAS NONRESPONSIVE AND MADE AN AWARD TO ANOTHER CONCERN FOR THE ITEMS. GSA ADVISES THAT THE QUESTION OF THE RESPONSIVENESS OF YOUR BID WAS SUBSEQUENTLY REVIEWED BY PROCUREMENT OFFICIALS IN ITS WASHINGTON.

B-171406, JUL 2, 1971

BID PROTEST - ACTIONS BY GSA DECISION DENYING PROTEST BY SUCCESSFUL LOW BIDDER AGAINST ALLEGED ATTEMPTS BY GSA TO PREVENT PROTESTANT FROM RECEIVING CERTAIN AWARDS. UPON REVIEWING THE RECORD, THE COMP. GEN. CANNOT CONCLUDE THAT THE ACTIONS TAKEN BY THE GSA WERE MOTIVATED BY A DESIRE TO DELIBERATELY PRECLUDE PROTESTANT FROM THE AWARDS. THE DECISION TO MODIFY REQUIREMENTS AND READVERTISE FOR BIDS WAS PROPER WHERE NO OFFEROR COULD MEET THE LEAKAGE TESTING REQUIREMENT AND THERE IS NO EVIDENCE THAT THE ERRONEOUS DETERMINATION CONCERNING RESPONSIVENESS OF PROTESTANT'S BID WAS OTHER THAN A BONA FIDE ERROR IN JUDGEMENT.

TO ALLIED CONVERTERS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1971, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTESTS UNDER SOLICITATIONS NO. A-W-10979- 1-A AND NO. 21102, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

IN A REPORT DATED JUNE 10, 1971, GSA HAS ADVISED OUR OFFICE THAT YOUR CONCERN SUBMITTED THE LOWEST BID FOR ITEMS 1 THROUGH 8 UNDER SOLICITATION NO. A-W-10979-1-A, WHICH WAS ISSUED ON DECEMBER 15, 1970, BY GSA'S ATLANTA, GEORGIA, REGIONAL OFFICE. HOWEVER, THE REGIONAL OFFICE DETERMINED THAT YOUR BID WAS NONRESPONSIVE AND MADE AN AWARD TO ANOTHER CONCERN FOR THE ITEMS. GSA ADVISES THAT THE QUESTION OF THE RESPONSIVENESS OF YOUR BID WAS SUBSEQUENTLY REVIEWED BY PROCUREMENT OFFICIALS IN ITS WASHINGTON, D.C., HEADQUARTERS, AND UPON SUCH REVIEW IT WAS DETERMINED THAT YOUR BID WAS RESPONSIVE. ACCORDINGLY, THE ERRONEOUS AWARD WAS CANCELLED AND AN AWARD WAS MADE TO YOUR COMPANY FOR THE ITEMS IN QUESTION.

WITH RESPECT TO SOLICITATION NO. 21102, ISSUED ON MAY 20, 1970, BY THE DENVER, COLORADO, REGIONAL OFFICE, GSA HAS ADVISED US THAT YOUR CONCERN SUBMITTED THE LOWEST BID FOR ITEMS 1 THROUGH 6. FOLLOWING BID OPENING THE CONTRACTING OFFICER DETERMINED THAT NONE OF THE PROSPECTIVE CONTRACTORS WOULD BE ABLE TO COMPLY WITH THE LEAKAGE TEST REQUIREMENTS OF THE SPECIFICATION APPLICABLE TO THESE ITEMS. FOR THAT REASON, ALL BIDDERS WERE REQUESTED TO EXTEND THEIR BID ACCEPTANCE PERIODS AND CONSIDERATION WAS GIVEN TO A MODIFICATION OF THE REQUIREMENTS. HOWEVER, THE PROBLEMS WITH RESPECT TO SPECIFICATION MODIFICATION WERE NOT RESOLVED WITHIN THE EXTENDED BID ACCEPTANCE PERIOD, AND ITEMS 1 THROUGH 6 WERE DELETED FROM THE SOLICITATION.

SUBSEQUENTLY, THE TESTING REQUIREMENTS RELATIVE TO LEAKAGE WERE MODIFIED, AND THE SIX ITEMS WERE SET FORTH IN SOLICITATION NO. 60083, ISSUED ON NOVEMBER 12, 1970. YOUR BID FOR THESE ITEMS WAS LOW AND AN AWARD WAS MADE TO YOUR CONCERN ON DECEMBER 31, 1970.

YOU STATE THAT THE ERRONEOUS AWARD UNDER SOLICITATION NO. A-W-10979-1 A AND THE CANCELLATION OF SOLICITATION NO. 21102, REVEAL A PATTERN WHEREBY GSA ATTEMPTS TO FIND REASONS TO PREVENT YOUR CONCERN FROM RECEIVING AWARDS, EVEN THOUGH YOU HAVE SUBMITTED THE LOWEST, ACCEPTABLE BIDS FOR THE ITEMS IN QUESTION.

FROM OUR REVIEW OF THE RECORD, AS DESCRIBED ABOVE, WE CANNOT CONCLUDE THAT THE ACTIONS TAKEN BY GSA WERE MOTIVATED BY A DESIRE TO DELIBERATELY PRECLUDE YOUR CONCERN FROM THE AWARDS. IN THIS REGARD, UNDER SOLICITATION NO. 21102 THERE IS NO EVIDENCE THAT GSA'S CONCLUSION, THAT NO OFFEROR COULD MEET THE LEAKAGE TESTING REQUIREMENT, WAS ERRONEOUS. IN VIEW THEREOF, THE DECISION TO MODIFY THE REQUIREMENT AND READVERTISE FOR BIDS WAS PROPER AND SHOULD NOT BE INTERPRETED AS A DELIBERATE ATTEMPT TO PRECLUDE YOUR CONCERN FROM AN AWARD. SIMILARLY, UNDER SOLICITATION NO. 10979-1-A THERE IS NO EVIDENCE THAT THE ERRONEOUS DETERMINATION CONCERNING THE RESPONSIVENESS OF YOUR BID WAS OTHER THAN A BONA FIDE ERROR IN JUDGMENT. WHILE THE FACT THAT THESE MATTERS DID ARISE IN CONSECUTIVE PROCUREMENTS IN WHICH YOU WERE LOW BIDDER IS REGRETTABLE, THAT FACT ALONE AFFORDS NO SUPPORT FOR YOUR CONTENTION THAT GSA ATTEMPTS TO PREVENT YOUR FIRM FROM RECEIVING AWARDS.

IN VIEW THEREOF, AND SINCE ANY OTHER LEGAL ISSUES WHICH MAY BE INVOLVED IN YOUR PROTESTS HAVE BEEN RENDERED ACADEMIC BY THE FACT THAT YOUR CONCERN EVENTUALLY RECEIVED THE AWARDS IN QUESTION, YOUR PROTESTS MUST BE DENIED.

WITH RESPECT TO YOUR COLLATERAL OBJECTIONS CONCERNING THE PROCEDURES USED BY GSA AND THE SMALL BUSINESS ADMINISTRATION (SBA) IN CONDUCTING PRE-AWARD INVESTIGATIONS OF YOUR CONCERN, AND THE DENIAL TO YOUR CONCERN OF THE RELEASE OF INFORMATION OBTAINED THEREBY, THESE MATTERS DO NOT CONCERN THE LEGALITY OF THE SUBJECT AWARDS WITH WHICH THIS OFFICE IS CONCERNED. ACCORDINGLY, WE SUGGEST THAT YOU MAY WANT TO BRING THESE OTHER MATTERS TO THE ATTENTION OF THE ADMINISTRATORS OF GSA AND SBA.