B-173183(1), SEP 7, 1971

B-173183(1): Sep 7, 1971

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IS INAPPLICABLE TO THIS CASE. ALTHOUGH IT MAY BE ADMINISTRATIVELY DIFFICULT TO DETERMINE THE NUMBER OF UNITS OF WORK TO BE PERFORMED UNDER THE CONTRACT IN ADVANCE (SINCE ORDERS WILL BE PLACED BY AGENCIES OTHER THAN GSA). IT APPEARS THAT PROTESTANT WAS NOT PREJUDICED BY THIS DEFICIENCY AND THE AWARD WILL NOT BE DISTURBED. AWARD WAS TO BE MADE IN THE AGGREGATE TO THE LOW BIDDER. THERE WERE NO ESTIMATED QUANTITIES SHOWN FOR EITHER ITEM. BIDS WERE OPENED ON APRIL 1. BURRELLE'S PRESS CLIPPING BUREAU (BURRELLE) WAS DETERMINED TO BE LOW WITH ITS UNIT PRICE OF $ .20 PER CLIPPING AND ITS READING FEE OF $20.00 PER ORDER PER MONTH. THE PRESS BID OF $ .20 PER CLIPPING AND ITS READING FEE OF $34.00 PER ORDER PER MONTH WAS FOURTH LOW.

B-173183(1), SEP 7, 1971

BID PROTEST - NO EVALUATION FACTOR - ESTIMATED QUANTITIES DECISION CONCERNING PROTEST AGAINST AWARD OF A CONTRACT TO BURRELLE'S PRESS CLIPPING BUREAU UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR THE FURNISHING OF PRESS CLIPPINGS. THE COMP. GEN. DOES NOT AGREE WITH THE GSA'S CONTENTION THAT B 172627, MAY 28, 1971, IS INAPPLICABLE TO THIS CASE; ALTHOUGH IT MAY BE ADMINISTRATIVELY DIFFICULT TO DETERMINE THE NUMBER OF UNITS OF WORK TO BE PERFORMED UNDER THE CONTRACT IN ADVANCE (SINCE ORDERS WILL BE PLACED BY AGENCIES OTHER THAN GSA), THE ESTABLISHMENT OF ESTIMATED QUANTITIES BY SOME REASONABLE METHOD WOULD CLEARLY BE SUPERIOR TO UTILIZING NO WEIGHT FACTOR AT ALL. HOWEVER, IT APPEARS THAT PROTESTANT WAS NOT PREJUDICED BY THIS DEFICIENCY AND THE AWARD WILL NOT BE DISTURBED.

TO ARNOLD & PORTER:

WE REFER TO THAT PORTION OF YOUR LETTER DATED JUNE 3, 1971, ON BEHALF OF PRESS INTELLIGENCE, INCORPORATED (PRESS), PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. 3FP-A2-R- 2643-4-1-71, ISSUED MARCH 2, 1971, BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE SUBJECT IFB SOLICITED BIDS FOR A REQUIREMENTS CONTRACT FOR THE FURNISHING OF PRESS CLIPPINGS FOR THE PERIOD JULY 1, 1971 THROUGH JUNE 30, 1972. THE IFB REQUIRED BIDDERS TO SUBMIT A UNIT PRICE FOR EACH CLIPPING AND A PRICE FOR A READING FEE PER ORDER PER MONTH. AWARD WAS TO BE MADE IN THE AGGREGATE TO THE LOW BIDDER, AS DETERMINED BY TOTALING THE UNIT PRICES FOR THE TWO ITEMS. THERE WERE NO ESTIMATED QUANTITIES SHOWN FOR EITHER ITEM. BIDS WERE OPENED ON APRIL 1, 1971, AND BURRELLE'S PRESS CLIPPING BUREAU (BURRELLE) WAS DETERMINED TO BE LOW WITH ITS UNIT PRICE OF $ .20 PER CLIPPING AND ITS READING FEE OF $20.00 PER ORDER PER MONTH. THE PRESS BID OF $ .20 PER CLIPPING AND ITS READING FEE OF $34.00 PER ORDER PER MONTH WAS FOURTH LOW. ALL BIDDERS EXCEPT FOR BURRELLE AND PRESS WERE CONSIDERED NONRESPONSIVE. AWARD WAS MADE TO BURRELLE ON APRIL 29, 1971.

YOU CONTEND THAT THE AWARD IS INVALID BECAUSE THE IFB FAILED TO INCLUDE ANY EVALUATION FACTORS FOR EITHER THE UNIT PRICE OR THE READING FEE, AND, MORE SPECIFICALLY, THAT THE IFB VIOLATES THE PRINCIPLES ESTABLISHED BY THIS OFFICE IN B-172627, MAY 28, 1971. IN THAT DECISION, WE HELD A SOLICITATION FOR SIMILAR SERVICE TO BE TOTALLY DEFECTIVE BECAUSE OF ITS FAILURE TO CALL FOR A READING FEE AND TO PROVIDE A REASONABLE QUANTITY ESTIMATE ON WHICH TO EVALUATE BIDS. ON THE OTHER HAND, GSA CONTENDS THAT THE CITED DECISION IS INAPPLICABLE TO THE INSTANT PROCUREMENT BECAUSE THE CURRENT IFB DOES CALL FOR THE INSERTION OF A READING FEE. IN ADDITION, GSA CONTENDS THAT THE PARTICULAR CIRCUMSTANCES SURROUNDING THIS PROCUREMENT MADE IT IMPOSSIBLE TO ACCURATELY ESTIMATE THE QUANTITIES TO BE ORDERED AND, THEREFORE, THE FAILURE TO ASSIGN WEIGHTS TO EACH ITEM IS NOT A FATAL DEFECT.

WE DO NOT AGREE WITH GSA'S CONTENTION THAT OUR DECISION, B-172627, SUPRA, IS INAPPLICABLE TO THIS CASE. THIS OFFICE HAS HELD IN THE PAST THAT THE PRIMARY PURPOSE OF THE STATUTES REQUIRING COMPETITION IN PROCUREMENTS IS TO GIVE ALL OFFERORS AN EQUAL OPPORTUNITY TO COMPETE FOR GOVERNMENT BUSINESS AND TO SECURE TO THE UNITED STATES THE BENEFITS OF FREE AND OPEN COMPETITION. TO REACH THIS OBJECTIVE IN SITUATIONS SUCH AS HERE WHERE THE NUMBER OF UNITS OF WORK TO BE PERFORMED UNDER THE CONTRACT CANNOT BE DETERMINED IN ADVANCE, THE BIDS SHOULD BE EVALUATED ON THE BASIS OF THE ESTIMATED WORK UNITS TO BE ACCOMPLISHED UNDER THE CONTRACT. SEE 47 COMP. GEN. 272, B-172627, MAY 28, 1971. WHILE IT APPEARS THAT GSA ACKNOWLEDGES THE APPLICABILITY OF THE PRINCIPLE IT URGES THAT THE RULE CANNOT BE APPLIED TO THIS IFB SINCE MANY OF THE ORDERS UNDER THIS CONTRACT ARE TO BE PLACED BY AGENCIES OTHER THAN GSA, ON AN OPTIONAL BASIS, THEREBY MAKING ACCURATE ESTIMATES IMPOSSIBLE. ALTHOUGH IT MAY INDEED BE ADMINISTRATIVELY DIFFICULT, WE FEEL THE ESTABLISHMENT OF ESTIMATED QUANTITIES BY SOME REASONABLE MEANS, RECOGNIZING THE LIMITATIONS ON ACCURACY INHERENT IN THE MOST ACCURATE MEANS AVAILABLE IN SOME SITUATIONS, WOULD CLEARLY BE SUPERIOR TO UTILIZING NO WEIGHT FACTOR AT ALL. WE THINK THAT FPR 1- 3.409(B) CONTEMPLATES THE USE OF SUCH ESTIMATES IN THIS TYPE OF CONTRACT. BY LETTER, COPY ENCLOSED, WE ARE RECOMMENDING THAT GSA REMEDY THIS SITUATION WITH RESPECT TO FUTURE PROCUREMENTS.

IT IS EVIDENT FROM THE BIDS RECEIVED THAT THE DEFICIENCY IN THE IFB DID NOT RESULT IN ANY UNBALANCING OF BURRELLE'S PRICES. ALSO, IT IS CLEAR THAT SINCE BOTH BURRELLE AND PRESS BID THE SAME PRICE PER CLIPPING AND BURRELLE WAS SUBSTANTIALLY LOWER ON THE UNIT READING FEE, THAT BURRELLE WOULD REMAIN LOWER OVERALL REGARDLESS OF WHAT ESTIMATED QUANTITIES WERE USED. ON THAT BASIS, WE DO NOT THINK IT WOULD BE PROPER TO DISTURB THE AWARD ON THE BASIS OF THE DEFECT IN THE SOLICITATION.

EVEN THOUGH PRESS DID NOT RECEIVE AN AWARD, YOUR PROTEST HAS FOCUSED ATTENTION ON THE NEED FOR ESTABLISHING A PROPER EVALUATION BASIS IN FUTURE PROCUREMENTS. WE HAVE BEEN ADVISED THAT GSA PROPOSES TO MAKE CHANGES IN ITS PROCEDURES WITH RESPECT TO FUTURE PROCUREMENTS OF THIS TYPE WITH THE AIM OF REMEDYING THE SHORTCOMINGS YOU HAVE NOTED.