B-173332, SEP 30, 1971

B-173332: Sep 30, 1971

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PROTESTANT CONTENDS THAT THE IFB WAS DEFECTIVE BECAUSE IT INCORPORATED PRICES FROM THEIR CURRENT SUBCONTRACT FOR IDENTICAL WORK. CONTRACT PRICES ON EXISTING GOVERNMENT CONTRACTS ARE. BELIEVES THAT SUCH INFORMATION MUST BE AVAILABLE TO ALL BIDDERS IF TRUE COMPETITION IS TO BE OBTAINED AND. INC.: REFERENCE IS MADE TO YOUR MAIL GRAM OF JUNE 18. YOUR PROTEST CLAIMED THE IFB WAS DEFECTIVE BECAUSE IT INCORPORATED PRICES FROM YOUR THEN CURRENT SUBCONTRACT FOR IDENTICAL WORK. THE JUNE 24 LETTER BROADENED YOUR COMPLAINT BY ALLEGING THAT DISSEMINATION OF THE PRICES WAS PREJUDICIAL TO YOU AND THAT SUCH DISSEMINATION. WHILE NO INFORMATION RELATIVE TO QUANTITY OR UNIT WAS GIVEN ON PAGE 2 OF THE SOLICITATION.

B-173332, SEP 30, 1971

BID PROTEST - DISCLOSURE OF PRIOR SUBCONTRACT PRICES DENIAL OF PROTEST AGAINST AN IFB ISSUED BY THE GENERAL ELECTRIC COMPANY, PRIME CONTRACTOR FOR OPERATION OF KNOLLS ATOMIC POWER LABORATORY, FOR TRANSPORTATION AND BURIAL SERVICES FOR BOTH LOW-LEVEL AND HIGH-LEVEL RADIOACTIVE WASTE CONTAINERS. PROTESTANT CONTENDS THAT THE IFB WAS DEFECTIVE BECAUSE IT INCORPORATED PRICES FROM THEIR CURRENT SUBCONTRACT FOR IDENTICAL WORK. CONTRACT PRICES ON EXISTING GOVERNMENT CONTRACTS ARE, AS A GENERAL RULE, A MATTER OF PUBLIC RECORD AND MAY BE OBTAINED BY ANY MEMBER OF THE PUBLIC. FURTHER, THE COMP. GEN. BELIEVES THAT SUCH INFORMATION MUST BE AVAILABLE TO ALL BIDDERS IF TRUE COMPETITION IS TO BE OBTAINED AND, THAT REVEALING PRICES FROM PRIOR CONTRACTS WOULD SHARPEN THE COMPETITIVE ATMOSPHERE.

TO ATCOR, INC.:

REFERENCE IS MADE TO YOUR MAIL GRAM OF JUNE 18, 1971, PROTESTING INVITATION FOR BIDS (IFB) 13689-D, ISSUED BY THE GENERAL ELECTRIC COMPANY (GE) AS PRIME CONTRACTOR FOR OPERATION OF KNOLLS ATOMIC POWER LABORATORY (KAPL). LETTERS OF JUNE 24, 28 AND JULY 6 FOLLOWED WITH ADDITIONAL SUPPORTING INFORMATION.

YOUR PROTEST CLAIMED THE IFB WAS DEFECTIVE BECAUSE IT INCORPORATED PRICES FROM YOUR THEN CURRENT SUBCONTRACT FOR IDENTICAL WORK. THE JUNE 24 LETTER BROADENED YOUR COMPLAINT BY ALLEGING THAT DISSEMINATION OF THE PRICES WAS PREJUDICIAL TO YOU AND THAT SUCH DISSEMINATION, IN EFFECT, UNDERMINES THE OBJECTIVE OF SEEKING COMPETITIVE PROPOSALS.

THE PERTINENT FACTS DISCLOSED BY THE RECORD SHOW THAT ON JUNE 11, 1971, GE ISSUED IFB NO. 13689-D TO YOUR COMPANY AND FOUR OTHERS. THE SOLICITATION ASKED, AT PAGE 2, FOR FIRM FIXED UNIT PRICE PROPOSALS COVERING TRANSPORTATION AND BURIAL SERVICE FOR BOTH LOW-LEVEL AND HIGH LEVEL RADIOACTIVE WASTE CONTAINERS, AS FOLLOWS:

ITEM QUANTITY DESCRIPTION UNIT UNIT PRICE

1 TRANSPORTATION AND BURIAL SERVICE

FOR LOW-LEVEL RADIOACTIVE WASTE

CONTAINERS. SURFACE DOSE RATE

OF LESS THAN 200 MR/HR.

2 TRANSPORTATION AND BURIAL SERVICE

FOR HIGH-LEVEL RADIOACTIVE WASTE

CONTAINERS. SURFACE DOSE RATE

GREATER THAN 200 MR/HR, BUT, LESS

THAN 1.OR/HR MEASURED 3 FT. FROM

THE SURFACE.

WHILE NO INFORMATION RELATIVE TO QUANTITY OR UNIT WAS GIVEN ON PAGE 2 OF THE SOLICITATION, THE FINAL PAGE OF THE TECHNICAL PROVISIONS CONTAINED THE FOLLOWING:

ITEM WORK DESCRIPTION UNIT PRICE/LB.

1 TRANSPORTATION

A) DOSE RATE LESS .0228

THAN 0.2R/HR. AT

SURFACE.

B) DOSE RATE 0.2R/HR. .0228

AT SURFACE TO 1.0R/HR.

AT 3 FT.

UNIT PRICE/CU. FT.

2 BURIAL

A) DOSE RATE LESS 1.06

THAN 0.2R/HR. AT SURFACE.

B) DOSE RATE 0.2R/HR. 19.64

AT SURFACE TO 1.0R/HR. AT

3 FT.

MINIMUM SHIPMENT 25,000 LBS.

ON JUNE 18 A MODIFICATION WAS ISSUED DELETING THE LAST PAGE OF THE TECHNICAL PROVISIONS AND ADDING THAT "ESTIMATED QUANTITY FOR PROPOSED PERIOD IS APPROXIMATELY 7 LOADS OF 100 DRUMS LOAD AND 300 LBS. DRUM HIGH LEVEL WASTE IS SOLIDIFIED." IT WAS THIS DELETED PAGE THAT CONTAINED THE PRICES NOW THE SUBJECT OF YOUR PROTEST.

WHILE AEC'S REPORT TO THIS OFFICE ON YOUR PROTEST ACKNOWLEDGES THAT THE INFORMATION ON THE LAST PAGE OF THE TECHNICAL PROVISIONS WAS TAKEN FROM YOUR THEN CURRENT SUBCONTRACT, AND ITS INCLUSION IN THE IFB WAS THE RESULT OF UNINTENTIONAL ERROR, IT IS TO BE NOTED THAT UNTIL YOUR MAIL GRAM OF JUNE 18, TO THIS OFFICE, THERE IS NO INDICATION THAT THE PRICES IN THE INVITATION HAD BEEN IDENTIFIED AS BEING THE PRICES FROM YOUR CURRENT SUBCONTRACT.

HOWEVER, EVEN IF THE PRICES HAD BEEN SO IDENTIFIED, SUCH IDENTIFICATION WOULD NOT, IN OUR OPINION, OPERATE TO MAKE THE IFB DEFECTIVE. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THE CONTRACT PRICES ON EXISTING GOVERNMENT CONTRACTS ARE AS A GENERAL RULE, A MATTER OF PUBLIC RECORD, AND AS SUCH MAY BE OBTAINED BY ANY MEMBER OF THE PUBLIC. CERTAINLY PROSPECTIVE BIDDERS ON A COMPETITIVE PROCUREMENT OPEN TO QUALIFIED FIRMS WOULD BE LIKELY TO EXAMINE PREVIOUS CONTRACTUAL ARRANGEMENTS TO AID THEM IN PRESENTING THEIR MOST FAVORABLE BID. RULES CONCERNING THE AVAILABILITY TO THE PUBLIC OF ATOMIC ENERGY COMMISSION RECORDS FOR INSPECTION AND FOR OBTAINING COPIES ARE SET FORTH IN DETAIL IN TITLE 10 OF THE CODE OF FEDERAL REGULATIONS (SEE 10 CFR 9.1-9.10), WHICH IS THE AEC IMPLEMENTATION OF SECTION 552 OF TITLE 5, UNITED STATES CODE. THE SUBCONTRACT AS A SUPPORTING DOCUMENT FOR GOVERNMENT PAYMENTS TO GE WOULD, OF COURSE, CONSTITUTE A PART OF THE RECORDS OF THE AEC, AND WE ARE ADVISED THAT THIS INFORMATION IS AVAILABLE FOR PUBLIC INSPECTION. UNDER THE CIRCUMSTANCES, THE INCLUSION BY GE OF SUCH INFORMATION ON ITS IFB WOULD NOT RENDER THE IFB DEFECTIVE.

YOU NEXT CONTEND THAT DISCLOSURE OF THE PRIOR CONTRACT PRICES WAS PREJUDICIAL TO YOU. WHILE YOU DO NOT ELABORATE ON HOW YOU WERE PREJUDICED, IT IS APPARENT THAT SUCH DISCLOSURE CANNOT BE EQUATED TO A DISCLOSURE OF PRICES ON YOUR CURRENT QUOTATION. FURTHER, THE FIGURES SHOWN WERE NOT IDENTIFIED, AND EVEN IF OTHER BIDDERS ASSUMED THEY WERE TAKEN FROM YOUR EXPIRING SUBCONTRACT, THEY DID NOT REVEAL YOUR BIDDING POSITION ON THE NEW INVITATION.

REGARDING YOUR LAST POINT, WE DO NOT AGREE THAT REVEALING FIGURES FROM A PRIOR YEAR CONTRACT WOULD UNDERMINE THE OBJECTIVE OF THE COMPETITIVE BIDDING SYSTEM. CONVERSELY, WE BELIEVE THAT SUCH INFORMATION MUST BE AVAILABLE TO ALL BIDDERS IF TRUE COMPETITION IS TO BE OBTAINED, AND THAT REVEALING PRICES FROM PRIOR CONTRACTS WOULD IN MOST CIRCUMSTANCES SHARPEN THE COMPETITIVE ATMOSPHERE.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THERE IS ANY LEGAL BASIS ON WHICH TO UPHOLD YOUR POSITION. ACCORDINGLY, YOUR PROTEST IS DENIED.