B-172607, JUL 8, 1971

B-172607, JUL 8, 1971

BID PROTEST - NEGOTIATED CONTRACTS - DISCLOSURE OF PRICING INFORMATION CONCERNING PROTEST BY A BIDDER ON A NEGOTIATED CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION FOR CONSTRUCTION OF AN INJECTION WELL FACILITY FOR THE U.S. GEOLOGICAL SURVEY. ALTHOUGH THE FPR PROHIBITS THE DISCLOSURE OF PRICING INFORMATION PRIOR TO AWARD OF A NEGOTIATED CONTRACT, WHERE A BIDDER REQUESTS THE LOW BID AND THE NAME OF THE SUCCESSFUL LOW BIDDER SUBSEQUENT TO AWARD, HE SHOULD BE PROVIDED SUCH INFORMATION, AND GSA HAS SO ADVISED THEIR PERSONNEL.

TO WELCH CONTRACTING CORPORATION:

THIS CONCERNS YOUR INQUIRY WITH RESPECT TO THE PRICES QUOTED BY FIRMS SUBMITTING PROPOSALS IN CONNECTION WITH CONTRACT NO. GS-03B-16749, FOR THE CONSTRUCTION OF AN INJECTION WELL FACILITY FOR THE UNITED STATES GEOLOGICAL SURVEY, NORFOLK, VIRGINIA.

YOUR LETTER OF MARCH 31, 1971, TO THE GENERAL SERVICES ADMINISTRATION STATES THAT IN YOUR EXPERIENCE, GOVERNMENT BIDS HAVE ALWAYS BEEN READ ALOUD AT PUBLIC BID OPENINGS.

UNDER FORMAL ADVERTISING THERE IS A STATUTORY REQUIREMENT THAT ALL BIDS BE PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. HOWEVER, IN THIS CASE THE PROCUREMENT WAS NEGOTIATED, NOT FORMALLY ADVERTISED.

THE REFUSAL OF GENERAL SERVICES ADMINISTRATION PERSONNEL TO REVEAL PRICES AFTER PROPOSALS WERE OPENED, BUT BEFORE AWARD, WAS CONSISTENT WITH THE FEDERAL PROCUREMENT REGULATIONS. FPR 1-3.805-1(B) PROHIBITS THE DISCLOSURE OF PRICING INFORMATION BEFORE AWARD OF A NEGOTIATED CONTRACT SINCE ANY SUCH PRACTICE WOULD AMOUNT TO USING THE PROHIBITED AUCTION TECHNIQUE. FPR 1-3.103(B) PROVIDES THAT WRITTEN NOTICE SHOULD BE GIVEN TO UNSUCCESSFUL OFFERORS THAT THEIR PROPOSALS WERE NOT ACCEPTED. THE INTERNAL REGULATIONS OF THE GENERAL SERVICES ADMINISTRATION PROVIDE AT GSPR 5-3.103(B)(1) THAT ONLY THE NAMES OF SUCCESSFUL OFFERORS AND THE PRICES AT WHICH AWARDS WERE MADE SHALL ORDINARILY BE PUBLICLY DISCLOSED.

MR. CROWDER REPORTEDLY ADVISED THE REPRESENTATIVE OF THE GENERAL SERVICES ADMINISTRATION IN A TELEPHONE CONVERSATION OF APRIL 22, 1971, THAT HE CALLED LATE IN THE AFTERNOON OF THE DAY PROPOSALS WERE TO BE SUBMITTED, MARCH 15, 1971, TO FIND OUT WHO WAS THE "LOW BIDDER." HE WAS ADVISED THAT THE PROPOSALS WERE NOT TO BE OPENED UNTIL THE NEXT MORNING. HE CALLED THE NEXT MORNING AT ABOUT 8:30 A.M., AND WAS ADVISED THAT THE PERSON WHO HAD CUSTODY OF THE PROPOSALS WAS NOT IN HIS OFFICE. MR. CROWDER STATED THAT HE CALLED LATER THAT DAY AND WAS TOLD THAT THE AMOUNTS OF THE OFFERS WOULD NOT BE REVEALED. HE DID NOT PURSUE THE MATTER UNTIL HE RECEIVED A LETTER DATED MARCH 30, 1971, ADVISING HIM THAT THE CONTRACT WAS AWARDED TO SOMEONE ELSE. AFTER RECEIPT OF THE LETTER DATED MARCH 31, 1971, FROM MR. CROWDER, REQUESTING AN EXPLANATION AS TO WHY THE PROPOSAL PRICES COULD NOT BE PUBLICLY DISCLOSED, HE WAS ADVISED BY LETTER DATED APRIL 6, 1971, IN ACCORDANCE WITH GSPR 5-3.103(B)(1) THAT THE CONTRACT WAS AWARDED TO WEDDLE AND ASSOCIATES AT $30,743.

THE GENERAL SERVICES ADMINISTRATION STATES THAT MR. CROWDER ACKNOWLEDGED DURING THE TELEPHONE CONVERSATION OF APRIL 22, 1971, THAT HE HAD RECEIVED THE LETTER OF APRIL 6, 1971, ADVISING OF THE NAME OF THE SUCCESSFUL OFFEROR AND THE AWARD PRICE. WHEN HE WAS ADVISED WITH RESPECT TO RESTRICTIONS PLACED UPON THE PUBLIC DISCLOSURE OF PRICES UNDER CONTRACT NEGOTIATION PROCEDURES, MR. CROWDER REPORTEDLY STATED THAT HE RECALLED SEEING A NOTATION AT THE TOP OF THE BID FORMS THAT THE CONTRACT WAS TO BE NEGOTIATED, THAT HE UNDERSTOOD WHY HE WAS NOT GIVEN THE PRICES QUOTED WHEN HE CALLED AND THAT, IF THIS HAD BEEN EXPLAINED TO HIM AT THE TIME, HE WOULD NOT HAVE RAISED THE ISSUE.

THE GENERAL SERVICES ADMINISTRATION HAS REPORTED, WITH REFERENCE TO THE FACT THAT MR. CROWDER WAS NOT FURNISHED THE NAME OF THE SUCCESSFUL OFFEROR AND THE AWARD PRICE IN THE FIRST INSTANCE, THAT GSA PERSONNEL HAVE BEEN ADVISED THAT IN THE FUTURE UNSUCCESSFUL OFFERORS ON NEGOTIATED CONTRACTS SHOULD BE TOLD THE NAME OF THE SUCCESSFUL OFFEROR AND THE AMOUNT OF THE AWARD.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT NO ACTION ON OUR PART IS REQUIRED WITH RESPECT TO THE MATTER.