B-172627, MAY 28, 1971

B-172627, MAY 28, 1971

BID PROTEST - BID RESPONSIVENESS DECISION DENYING PROTEST BY LOW BIDDER AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY HEW TO PROVIDE PRESS CLIPPINGS FROM A STIPULATED NUMBER OF NATIONWIDE DAILY AND WEEKLY NEWSPAPERS AND MAGAZINES. BECAUSE PROTESTANT'S BID INCLUDED A READING FEE PER MONTH, PER ORDER, NOT CALLED FOR IN THE SOLICITATION IT WAS DETERMINED NONRESPONSIVE, ALTHOUGH THE FAILURE TO CALL FOR SUCH A FEE AND PROVIDE A REASONABLE QUANTITY ESTIMATE WAS A DEFECT IN THE IFB. FURTHER, WHILE THE RESOLICITATION CONTAINS THE READING FEE PER MONTH, PER ORDER, ALSO INCLUDED IS AN EVALUATION FACTOR NECESSARY TO DETERMINE THE LOW RESPONSIVE BIDDER.

TO ARNOLD & PORTER:

WE REFER TO YOUR LETTERS OF APRIL 16 AND 28, 1971, ON BEHALF OF PRESS INTELLIGENCE, INCORPORATED (PRESS), PROTESTING THE CONTRACTING OFFICER'S DETERMINATION TO REJECT ALL BIDS UNDER INVITATION FOR BIDS (IFB) NO. 8-71- HEW-OS, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) AND TO READVERTISE THE PROCUREMENT UNDER IFB NO. 11 71-HEW-OS, ISSUED ON APRIL 5, 1971.

THE INITIAL IFB ISSUED ON MARCH 11, 1971, SOLICITED BIDS FOR A CONTRACT TO PROVIDE PRESS CLIPPINGS FROM A STIPULATED NUMBER OF NATIONWIDE DAILY AND WEEKLY NEWSPAPERS AND MAGAZINES. FOUR FIRMS RESPONDED TO THE INITIAL IFB. TWO OF THE BIDS WERE REJECTED AS LATE. ONE OF THE TWO REMAINING BIDS WAS DETERMINED TO HAVE BEEN UNREASONABLY PRICED BASED ON THE FACT THAT THE UNIT PRICE OFFERED $1.50 PER CLIPPING, WAS ALMOST NINE TIMES THE UNIT PRICE UNDER WHICH THE PREVIOUS CONTRACT FOR THE SAME SERVICES HAD BEEN AWARDED. THE REMAINING BID, THAT OF PRESS, WAS LOW AT A UNIT PRICE OF $0.20 PER CLIPPING. HOWEVER, THAT BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT INCLUDED, IN ADDITION TO THE UNIT PRICE PER CLIPPING CALLED FOR IN THE IFB, A READING FEE PER MONTH PER ORDER. VIEW OF THIS ADDITION WHICH WAS NOT CALLED FOR BY THE IFB, THE CONTRACTING OFFICER DETERMINED THAT THE INITIAL IFB SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED. BIDS UNDER THE RESOLICITATION WERE OPENED ON APRIL 19, 1971; HOWEVER, AWARD HAS BEEN POSTPONED PENDING OUR RESOLUTION OF THIS PROTEST.

YOU CONTEND THAT THE PRESS BID ON THE FIRST SOLICITATION WAS IMPROPERLY RULED NONRESPONSIVE BECAUSE THE INSERTION OF THE READING FEE WAS NEITHER A DEVIATION FROM NOR INCONSISTENT WITH THE TERMS OF THE SOLICITATION. THE FOLLOWING FACTORS ARE URGED IN SUPPORT OF YOUR CONTENTION: (1) ALTHOUGH THE INITIAL IFB WAS IDENTICAL IN FORM WITH SOLICITATIONS UTILIZED BY OTHER AGENCIES IN THAT NO SPACE WAS PROVIDED FOR A READING FEE, THE PRACTICE OF TYPING IN SUCH A FEE HAS NEVER CAUSED A PREVIOUS BID TO BE DEEMED NONRESPONSIVE BY ANOTHER AGENCY, AND (2) THE IFB UTILIZED FOR THE READVERTISEMENT INCLUDES A SPACE FOR THE INSERTION OF THE SAME READING FEE WHICH PRESS ADDED TO THE INITIAL IFB.

WE ARE INFORMED THAT THE CONTRACTING OFFICER DETERMINED THE PRESS BID TO BE NONRESPONSIVE BECAUSE THE READING FEE MADE EVALUATION OF ITS PRICE IMPOSSIBLE. MORE SPECIFICALLY WE ARE INFORMED THAT THE GOVERNMENT HAD NO EVALUATION FACTOR (E.G., AN ESTIMATE OF THE NUMBER OF ORDERS), AGAINST WHICH THE EFFECT OF SUCH A FEE COULD BE MEASURED. IN THIS CONNECTION, WE ALSO NOTE THAT THE OTHER BIDDER INSERTED NO SUCH FEE BUT APPARENTLY INCLUDED THIS COST IN ITS SINGLE UNIT PRICE IN ACCORDANCE WITH THE IFB.

THE NUMBER OF UNITS OF WORK TO BE PERFORMED UNDER THE CONTRACT TO BE AWARDED CANNOT BE DETERMINED IN ADVANCE. THEREFORE, THE BIDS SUBMITTED MUST BE EVALUATED ON THE BASIS OF THE ESTIMATED NUMBER OF WORK UNITS TO BE ACCOMPLISHED UNDER THE CONTRACT. 47 COMP. GEN. 272 (1967). AS YOU HAVE POINTED OUT IT IS CUSTOMARY TO DIVIDE THE WORK INTO TWO TYPES OF MEASURABLE UNITS, WITH A UNIT PRICE PER CLIPPING AND A READING FEE PER ORDER PER MONTH. THE INITIAL SOLICITATION CALLED ONLY FOR A PRICE PER CLIPPING. THE PRESS BID, REFLECTING CUSTOMARY PRACTICE, ALSO INCLUDED A READING FEE PER ORDER PER MONTH, ALTHOUGH THE SOLICITATION MADE NO PROVISION FOR THE INSERTION OF THE LATTER FIGURE. WE BELIEVE THAT THE FAILURE OF THE INITIAL SOLICITATION TO CALL FOR A READING FEE PER ORDER PER MONTH AND TO PROVIDE A REASONABLE QUANTITY ESTIMATE FOR THIS ITEM WAS TOTALLY DEFECTIVE IN THAT IT FAILED TO SET OUT THE BASIS OF EVALUATION. SEE 47 COMP. GEN. 272, SUPRA.

WE DO NOT QUESTION YOUR ASSERTION THAT BIDS FOR SIMILAR SERVICES IN PRIOR PROCUREMENTS HAVE BEEN ACCEPTED EVEN THOUGH THEY INCLUDED A READING FEE NOT SPECIFICALLY CALLED FOR BY THE INVITATION. HOWEVER, THE FACT THAT AN IMPROPER PROCEDURE HAS BEEN SUCCESSFULLY USED IN THE PAST DOES NOT JUSTIFY ITS CONTINUED USE. B-171417, MARCH 9, 1971.

YOU FURTHER CONTEND THAT THE PRESS BID COULD NOT HAVE BEEN NON RESPONSIVE BECAUSE THE RESOLICITATION INCLUDES A SPACE FOR INSERTION OF A READING FEE SIMILAR TO THAT WHICH PRESS INSERTED IN ITS ORIGINAL BID. ALTHOUGH THE RESOLICITATION DOES, IN FACT, CONTAIN SUCH A PROVISION, ALSO INCLUDED IS AN EVALUATION FACTOR OF FIFTEEN ORDERS PER YEAR.

IN VIEW OF THE FOREGOING, WE FIND THAT THE CONTRACTING OFFICER'S DECISION TO REJECT ALL BIDS PURSUANT TO FPR 1-2.404-1 WAS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.