B-173029, SEP 1, 1971

B-173029: Sep 1, 1971

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IS OF THE OPINION THAT SINCE PROTESTANT IS AN INCUMBENT CONTRACTOR FOR THE TYPE OF SERVICE COVERED BY THE SUBJECT SOLICITATION. THE SOIL CONSERVATION SERVICE SHOULD HAVE SENT PROTESTANT A COPY OF THE SOLICITATION AND THAT THE FAILURE TO DO SO ON THE BASIS THAT PROTESTANT LACKED THE CAPACITY TO PERFORM BECAUSE OF OBLIGATIONS UNDER AN EXISTING CONTRACT WAS AN IMPROPER AND PREMATURE NONRESPONSIBILITY DETERMINATION BY THE CONTRACTING OFFICER. BECAUSE NO COMPLAINT WAS MADE UNTIL AFTER THE AWARDS AND SINCE THERE IS NO EVIDENCE THAT THE AWARDS DID NOT RESULT IN VALID CONTRACTS. IS UNABLE TO TAKE ANY CORRECTIVE ACTION AT THIS TIME. TO TECHSCRIBE & EDIT: REFERENCE IS MADE TO YOUR LETTER OF MAY 19.

B-173029, SEP 1, 1971

BID PROTEST - FAILURE TO RECEIVE SOLICITATION - PREMATURE NONRESPONSIBILITY DETERMINATION DECISION CONCERNING PROTEST BY TECHSCRIBE & EDIT CONCERNING THE FAILURE OF THE SOIL CONSERVATION SERVICE TO FURNISH SAID FIRM WITH COPIES OF A SOLICITATION FOR A REQUIREMENTS CONTRACT TO FURNISH PROFESSIONAL SERVICES IN CONNECTION WITH THE PUBLICATION OF SOIL SURVEY MANUSCRIPTS. THE COMP. GEN. IS OF THE OPINION THAT SINCE PROTESTANT IS AN INCUMBENT CONTRACTOR FOR THE TYPE OF SERVICE COVERED BY THE SUBJECT SOLICITATION, THE SOIL CONSERVATION SERVICE SHOULD HAVE SENT PROTESTANT A COPY OF THE SOLICITATION AND THAT THE FAILURE TO DO SO ON THE BASIS THAT PROTESTANT LACKED THE CAPACITY TO PERFORM BECAUSE OF OBLIGATIONS UNDER AN EXISTING CONTRACT WAS AN IMPROPER AND PREMATURE NONRESPONSIBILITY DETERMINATION BY THE CONTRACTING OFFICER. HOWEVER, BECAUSE NO COMPLAINT WAS MADE UNTIL AFTER THE AWARDS AND SINCE THERE IS NO EVIDENCE THAT THE AWARDS DID NOT RESULT IN VALID CONTRACTS, THE COMP. GEN. IS UNABLE TO TAKE ANY CORRECTIVE ACTION AT THIS TIME.

TO TECHSCRIBE & EDIT:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE FAILURE OF THE SOIL CONSERVATION SERVICE, WASHINGTON, D.C., TO FURNISH YOUR COMPANY WITH COPIES OF SOLICITATION NO. SCS-7-71.

THE SOLICITATION, WHICH WAS ISSUED ON MARCH 4, 1971, WAS FOR A REQUIREMENTS CONTRACT TO FURNISH PROFESSIONAL SERVICES REQUIRED FOR THE EDITING AND PREPARATION FOR PUBLICATION OF SOIL SURVEY MANUSCRIPTS DURING THE PERIOD APRIL 1, 1971, THROUGH MARCH 31, 1972. ALTHOUGH IT WAS ORIGINALLY ESTIMATED THAT THE EDITING AND PREPARATION FOR PUBLICATION OF APPROXIMATELY 12 TO 20 COMPLETE SOIL SURVEY MANUSCRIPTS MAY BE ORDERED BY THE GOVERNMENT DURING THE CONTRACT PERIOD, BY LETTER DATED APRIL 1, 1971, OFFERORS WERE ADVISED THAT THE ESTIMATE OF SOIL SURVEY MANUSCRIPTS TO BE EDITED WAS BEING INCREASED TO 120 AND THAT IT WAS INTENDED THAT MULTIPLE AWARDS (TWO OR MORE CONTRACTS) WOULD BE MADE ON AN INDEFINITE QUANTITY BASIS. A COPY OF THE LETTER OF APRIL 1, 1971, WAS MAILED TO THE SIX OFFERORS WHO INITIALLY RESPONDED TO SOLICITATION NO. SCS-7-71. THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY BECAUSE IT WAS NOT CONSIDERED TO BE FEASIBLE OR PRACTICABLE TO PUBLICIZE THE PROCUREMENT IN THAT PUBLICATION.

IN RESPONSE TO THE APRIL 1, 1971, LETTER, SIX REVISED PROPOSALS WERE RECEIVED, THE LOWEST OF WHICH WAS SUBMITTED BY THE VALUE ENGINEERING COMPANY. ON APRIL 14, 1971, THE BOARD OF CONTRACT AWARDS RECOMMENDED THAT CONTRACTS BE AWARDED TO THE VALUE ENGINEERING COMPANY, EDWARD T. JOHNSON & ASSOCIATES, MCLAUGHLIN RESEARCH CORPORATION, AND THE CROWELL COLLIER EDUCATIONAL CORPORATION.

IN SUBSTANTIATION OF YOUR PROTEST, YOU STATE THAT PRIOR TO THE ISSUANCE OF THE SUBJECT SOLICITATION, THE SOIL CONSERVATION SERVICE AWARDED YOUR FIRM A CONTRACT FOR EDITING SIX SOIL SURVEY MANUSCRIPTS; THAT WHILE YOU WERE PERFORMING UNDER THIS CONTRACT THE SOIL CONSERVATION SERVICE ADVISED YOUR FIRM BY TELEPHONE THAT THE SERVICE WAS GOING TO ISSUE ANOTHER SOLICITATION FOR WORK SIMILAR TO THAT WHICH YOU WERE PERFORMING, BUT THAT YOU WOULD NOT BE PLACED ON THE MAILING LIST FOR THAT SOLICITATION BECAUSE IT WAS FELT THAT YOU WERE TOO BUSY WITH YOUR PRESENT CONTRACT; THAT YOU DID NOT CONTEST THE SERVICE'S FAILURE TO PLACE YOUR FIRM ON THE MAILING LIST FOR THAT INVITATION AT THAT TIME BECAUSE YOU BELIEVED THE SERVICE'S STATEMENT THAT THE NEW CONTRACT WOULD COVER A PERIOD OF ONLY SIX TO EIGHT MONTHS; AND THAT YOU LATER LEARNED THAT THE NEW CONTRACT WOULD COVER A PERIOD OF 12 MONTHS AND THAT IT WOULD BE FOR AN INDEFINITE QUANTITY. YOU MAINTAIN THAT YOUR FIRM HAS THE CAPACITY TO PERFORM THE WORK UNDER THE CURRENT CONTRACT AS WELL AS ANY ADDITIONAL WORK WHICH MIGHT BE AWARDED TO YOUR FIRM.

IN REGARD TO THE FAILURE OF YOUR FIRM TO RECEIVE A COPY OF SOLICITATION NO. SCS-7-71, THE ADMINISTRATIVE OFFICE STATED IN ITS REPORT TO OUR OFFICE THAT YOUR FIRM, WITH A SMALL STAFF OF TWO FULL TIME AND TWO PART-TIME TECHNICAL EDITORS, WAS AWARDED A CONTRACT ON JANUARY 29, 1971, FOR EDITING AND PREPARING SIX SOIL SURVEY MANUSCRIPTS CALLING FOR CONCURRENT PERFORMANCE TIME OF 240 CALENDAR DAYS FROM THE DATE OF THE CONTRACT AWARD. THE REPORT STATES THAT YOUR FIRM WAS NOT INCLUDED IN THE DISTRIBUTION OF SOLICITATION NO. SCS-7-71 DATED MARCH 4, 1971, OR THE LETTER OF APRIL 1, 1971, AMENDING ITS TERMS, BECAUSE IT WAS FELT THAT SINCE AWARDS UNDER SOLICITATION NO. SCS-7-71 WERE TO BE MADE DURING THE LATTER PART OF MARCH AND EARLY APRIL 1971, AN AWARD TO YOUR FIRM UNDER THAT SOLICITATION COULD RESULT IN A PERFORMANCE CONFLICT WITH THE WORK TO BE DONE UNDER THE CONTRACT AWARDED YOUR FIRM ON JANUARY 29, 1971, AND THAT THIS WAS ESPECIALLY SIGNIFICANT BECAUSE THE FIRST 45 DAYS' PERFORMANCE TIME IS DEVOTED TO THE PREPARATION AND REVIEW OF SAMPLES OF EDITING IN ALL MAIN SECTIONS OF EACH SOIL SURVEY MANUSCRIPT.

IT IS REPORTED THAT SEVERAL WEEKS AFTER THE AWARD OF THE CONTRACT TO YOUR FIRM ON JANUARY 29, 1971, YOU WERE ADVISED BY A REPRESENTATIVE OF THE SOIL CONSERVATION SERVICE THAT IT WAS CONTEMPLATING ENTERING INTO ADDITIONAL CONTRACTS FOR SOIL SURVEY EDITING AND THAT IT WAS PROPOSED THAT THE CONTRACTS WOULD BE ON AN INDEFINITE DELIVERY BASIS. THE REPLY OF YOUR FIRM TO THIS ADVICE WAS TO THE EFFECT THAT YOUR FIRM WAS SUFFICIENTLY BUSY AT THE TIME SO THAT YOU WERE NOT INTERESTED IN THE SOLICITATION. IT ALSO IS REPORTED THAT AS A RESULT OF THE TELEPHONE CONVERSATION, A NOTATION WAS MADE IN THE RECORDS OF THE SERVICE THAT YOUR FIRM WAS NOT INTERESTED IN THE SOLICITATION.

WE ARE OF THE OPINION THAT SINCE YOUR FIRM IS AN INCUMBENT CONTRACTOR FOR THE TYPE OF SERVICE COVERED BY SOLICITATION NO. SCS-7-71, THE SOIL CONSERVATION SERVICE SHOULD HAVE SENT YOUR FIRM A COPY OF THE SOLICITATION, AND THAT THE FAILURE TO DO SO ON THE BASIS THAT YOUR FIRM LACKED THE CAPACITY TO PERFORM BECAUSE OF ITS OBLIGATIONS UNDER ITS EXISTING CONTRACT WAS AN IMPROPER AND PREMATURE NONRESPONSIBILITY DETERMINATION BY THE CONTRACTING OFFICER, PARTICULARLY IN VIEW OF YOUR FIRM'S SMALL BUSINESS STATUS. SEE 15 U.S.C. 637(B)(7) AND 45 COMP. GEN. 642 (1966). BY LETTER OF TODAY TO THE SECRETARY OF AGRICULTURE, WE ARE BRINGING THIS MATTER TO HIS ATTENTION FOR CORRECTIVE ACTION.

HOWEVER, INASMUCH AS YOU WERE ADVISED OF THE NEW SOLICITATION BEFORE ITS ISSUANCE BUT TOOK NO STEPS TO COMPLAIN UNTIL SOMETIME AFTER AWARD WAS MADE THEREUNDER, AND SINCE THERE IS NO INDICATION THAT THE AWARDS MADE UNDER THE SOLICITATION DID NOT RESULT IN VALID CONTRACTS, OUR OFFICE IS UNABLE TO TAKE ANY CORRECTIVE ACTION AT THIS TIME.

WITH REGARD TO THE PUBLICIZING OF PROCUREMENTS COVERING PERSONAL AND PROFESSIONAL SERVICES IN THE COMMERCE BUSINESS DAILY, SECTION 1-1.1003 3(B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES AS FOLLOWS:

"(B) PERSONAL AND PROFESSIONAL SERVICES. ADVANCE NOTICE OF PROCUREMENTS FOR PERSONAL OR PROFESSIONAL SERVICES SHALL BE PUBLISHED IN THE SYNOPSIS WHEN IT IS FEASIBLE AND PRACTICABLE TO DO SO AND THE BEST INTERESTS OF THE GOVERNMENT WILL BE SERVED."

SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT IT WAS NOT FEASIBLE OR PRACTICABLE TO PUBLICIZE SOIL SURVEY EDITING REQUESTS FOR PROPOSALS IN THE COMMERCE BUSINESS DAILY, WE NEED NOT QUESTION THIS ASPECT OF YOUR PROTEST.

ALTHOUGH IT IS REGRETTABLE THAT YOUR FIRM WAS UNABLE TO PARTICIPATE IN THE PROCUREMENT, WE HAVE NO ALTERNATIVE, ON THE RECORD BEFORE US, BUT TO DENY THE PROTEST.