B-174303, FEB 22, 1972

B-174303, FEB 22, 1972

BID PROTEST - PRIOR KNOWLEDGE OF SPECIFICATION CHANGES DECISION DENYING THE PROTEST OF GOODWAY, INC., AGAINST AWARD OF A REQUIREMENTS TYPE CONTRACT TO BRACELAND BROTHERS, INC. (BRACELAND), UNDER AN IFB ISSUED BY THE GOVERNMENT PRINTING OFFICE (GPO) FOR THE PRINTING AND BINDING OF NAVY NUCLEAR TECHNICAL MANUALS. PROTESTANT ALLEGES THAT THROUGHOUT THE HISTORY OF THE PROCUREMENT THE NAVY IMPROPERLY ACCOMODATED BRACELAND TO THE DETRIMENT OF OTHER BIDDERS WITH REGARD TO GEOGRAPHICAL AREA LIMITATIONS, USE OF COURSES, AND THE SIZE OF THE PRESS REQUIRED FOR CONTRACT PERFORMANCE, THEREBY UNDERMINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. ACCORDING TO THE GPO ADMINISTRATIVE REPORT, THE NAVY EXPRESSLY DENIED THE EXCHANGE OF INFORMATION REGARDING PROGRAM SPECIFICATIONS WITH ANYONE OTHER THAN GPO PERSONNEL. IN ADDITION, THE REPORT ADEQUATELY EXPLAINS THE REASONS FOR SPECIFICATION CHANGES AND, ABSENT FURTHER EVIDENCE OF ILLEGAL OR IMPROPER ACTION ON THE PART OF GOVERNMENT PROCUREMENT PERSONNEL, THERE IS NO BASIS FOR DISTURBING THE AWARD. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO GOODWAY, INCORPORATED:

THIS IS IN REFERENCE TO YOUR LETTER OF OCTOBER 14, 1971, IN WHICH YOU PROTEST AN AWARD TO BRACELAND BROTHERS, INCORPORATED, BY THE GOVERNMENT PRINTING OFFICE (GPO) UNDER PROGRAM 1218-S, FOR THE 1971-1972 PERIOD.

THE PROCUREMENT IS FOR A REQUIREMENTS TYPE CONTRACT FOR THE PRINTING AND BINDING FOR THE DEPARTMENT OF THE NAVY OF NUCLEAR REACTOR TECHNICAL MANUALS INCLUDING PRODUCTION OF CLASSIFIED MATERIAL. YOU WERE THE PROGRAM CONTRACTOR FOR THE 1969-1970 PERIOD, WHILE BRACELAND BROTHERS WAS AWARDED THE 1970-1971 CONTRACT. AT THE FIRST BID OPENING FOR THE 1971-1972 CONTRACT AWARD, ON AUGUST 23, 1971, YOU WERE THE APPARENT LOW BIDDER BUT WERE DETERMINED TO BE NONRESPONSIVE BECAUSE YOU FAILED TO BID A PRICE ON A REQUIRED ITEM. YOUR PROTEST TO GPO WAS DENIED. GPO THEN DETERMINED THAT THE SECOND LOW BIDDER, BRACELAND, WAS NOT RESPONSIBLE BECAUSE IT DID NOT MEET THE IFB REQUIREMENT THAT THE CONTRACTOR'S PRODUCTION FACILITIES BE LOCATED WITHIN A 30-MILE RADIUS OF PITTSBURGH, PENNSYLVANIA. THE IFB WAS SUBSEQUENTLY CANCELLED BECAUSE THE REMAINING BIDS WERE FOUND TO BE UNREASONABLY HIGH, AND BIDS WERE RESOLICITED. THE SECOND SOLICITATION INCREASED THE AREA LIMITATION FROM 30 MILES TO 65 MILES. BRACELAND WAS THE LOW BIDDER ON THE SECOND IFB AND WAS AWARDED THE CONTRACT ON SEPTEMBER 30, 1971. GPO DENIED YOUR PROTEST THAT BRACELAND SHOULD NOT HAVE BEEN AWARDED THE CONTRACT BECAUSE IT LACKED THE FACILITIES TO PERFORM THE JOB.

YOU CLAIM THAT THE HISTORY OF THE 1218-S PROGRAM REVEALS AN EFFORT TO ACCOMMODATE BRACELAND BROTHERS TO THE DETRIMENT OF OTHER BIDDERS. YOU ALLEGE THAT CHANGES MADE IN THE SOLICITATION SINCE 1969 "CONTINUALLY REQUALIFIED BRACELAND" OR ELSE THAT BRACELAND "HAD KNOWLEDGE OF THE CHANGES PRIOR TO BID." YOU FURTHER ALLEGE THAT "THE NAVY AND BRACELAND HAD PRIVATELY AGREED TO SPECIFICATION CHANGES WITHOUT INFORMING ALL COMPETITORS." THESE CHANGES DEAL WITH GEOGRAPHICAL AREA LIMITATIONS, USE OF COURIERS, AND SIZE OF PRESS REQUIRED FOR CONTRACT PERFORMANCE. YOU FURTHER CLAIM THAT BRACELAND IMPROPERLY ESTABLISHED A "BACK STREET" ADDRESS SOLELY TO QUALIFY FOR THE AWARD WITHOUT ANY INTENTION OF PERFORMING AT THAT ADDRESS, AND THAT, IN ANY EVENT, IT WAS NOT QUALIFIED FOR AWARD BECAUSE ITS "BACK STREET" FACILITY WAS NOT EQUIPPED WITH A LARGE ENOUGH PRESS TO MEET PERFORMANCE REQUIREMENTS. YOU STATE THAT ALL THIS UNDERMINED THE INTEGRITY OF THE COMPETITIVE BIDDING PROCESS.

IN RESPONSE TO YOUR ALLEGATIONS, THE GPO, AFTER CONSIDERING THE NAVY'S VIEWS, FURNISHED US WITH AN ADMINISTRATIVE REPORT. ACCORDING TO THIS REPORT, THE NAVY SPECIFICALLY STATED THAT "THERE WAS NO EXCHANGE OF INFORMATION OR CONVERSATION REGARDING PROGRAM SPECIFICATIONS WITH ANYONE OTHER THAN GPO PERSONNEL."

THE REPORT FURTHER REVIEWS THE HISTORY OF PROGRAM 1218-S. IT STATES THAT BIDS FOR THE 1969-1970 CONTRACT WERE SOLICITED ONLY FROM PITTSBURGH, PENNSYLVANIA AREA FIRMS EVEN THOUGH NO AREA RESTRICTION WAS INCLUDED IN THE INVITATION, AND NOTES THAT YOU, AS THE CONTRACTOR FOR 1969-1970, PERFORMED CERTAIN FOLD-IN OPERATIONS AT YOUR PHILADELPHIA PLANT BECAUSE THE JOB EXCEEDED THE CAPACITY OF YOUR PITTSBURGH PLANT. IT FURTHER STATES THAT AN AREA RESTRICTION WAS AGAIN NOT INCLUDED IN THE 1970-1971 SOLICITATION AND THE BIDDER'S LIST WAS EXPANDED TO INCLUDE PHILADELPHIA AREA PRINTERS. THE CONTRACT AWARDED TO BRACELAND, A PHILADELPHIA FIRM, PROVIDED THAT PICKUP AND DELIVERY OF CLASSIFIED MATERIAL COULD BE BY THE CONTRACTOR'S EMPLOYEES ONLY. THE REPORT STATES THAT THE PURPOSE OF THIS PROVISION WAS TO ASSURE SAFEGUARDING OF THE MATERIAL AND NOT TO REQUIRE THE MAINTENANCE OF A FACILITY IN THE PITTSBURGH AREA. THE REPORT FURTHER STATES THAT THE NAVY LATER REQUIRED THE CLASSIFIED MATERIAL TO BE FORWARDED FROM THE PITTSBURGH FACILITY OF THE NAVY'S HARDWARE CONTRACTOR TO A NAVY OFFICE IN PHILADELPHIA FOR INSPECTION PRIOR TO RELEASE TO THE PRINTER, AND THAT THE FACT THAT "BRACELAND WAS IN THE PHILADELPHIA AREA HAD NO BEARING ON THE SITUATION SO FAR AS THIS AGENCY IS ABLE TO DETERMINE. LIKEWISE, COURIER PICKUP AND DELIVERY WAS PERMITTED, SINCE IT PROVIDED THE NECESSARY PROTECTION OF CLASSIFIED MATERIAL REQUIRED."

THE REPORT STATES THE FOLLOWING WITH RESPECT TO THE CURRENT CONTRACT:

"THE NAVY DEPARTMENT DETERMINED THAT BECAUSE OF THE NATURE OF THE PRINTING REQUIREMENT, THE PRINTING HAD TO BE ACCOMPLISHED WITHIN A CLOSER PROXIMITY OF THE WESTINGHOUSE FACILITIES, I.E., THE PITTSBURGH AREA. BRACELAND BROTHERS WHO WAS IN THE PROCESS OF ESTABLISHING A FACILITY AT WEIRTON, WEST VIRGINIA, WAS ON THE BID LIST SUBMITTED TO THE NAVY FOR APPROVAL.

"PRIOR TO THE SOLICITATION, THE NAVY DEPARTMENT INSPECTED PROSPECTIVE BIDDERS' FACILITIES IN THE PITTSBURGH AREA. THE NAVY REPRESENTS THAT 'THE GOODWAY FACILITIES AMONGST OTHER FACILITIES IN PITTSBURGH WERE VISITED, (AND) NO MENTION WAS MADE DURING THE TIME OF THE VISIT AS TO THE PRINTING SIZE OF THE PUBLICATIONS. IT WAS STATED, HOWEVER, THAT THE NEW CONTRACT WOULD BE REQUIRED TO BE PERFORMED IN THE PITTSBURGH AREA. THIS SAME STATEMENT WAS MADE TO OTHER PRINTING FACILITIES VISITED.'"

ACCORDING TO THE REPORT, AFTER REJECTION OF BOTH YOUR BID AND BRACELAND'S AND CANCELLATION OF THE IFB, THE NAVY WAS REQUESTED TO "PERMIT AN INCREASE IN THE AREA RESTRICTION SO AS TO OBTAIN MEANINGFUL COMPETITION. THE NAVY AGREED TO AN INCREASE TO 65 MILES *** ." BIDS WERE RECEIVED FROM THE SAME FOUR BIDDERS ON THE RESOLICITATION, AND AWARD WAS MADE TO BRACELAND, WHICH SUBMITTED THE LOWEST BID.

THERE IS NOTHING IN THE PROCUREMENT HISTORY OF THIS PROGRAM TO INDICATE ILLEGAL ACTIONS ON THE PART OF GOVERNMENT PROCUREMENT PERSONNEL. YOU DESCRIBE IN GREAT DETAIL THE VARIOUS DEVELOPMENTS ALLEGEDLY FAVORING BRACELAND, BUT THE GPO REPORT PROVIDES A REASONABLE EXPLANATION FOR THE ALLEGED ACTS OF FAVORITISM. WE FIND IN THE RECORD NO MANIFESTED INTENT ON THE PART OF THE NAVY AND GPO TO VIOLATE THE PRINCIPLES OF COMPETITIVE PROCUREMENT.

YOU CLAIM THAT ENLARGING THE AREA LIMITATION FROM 30 MILES TO 65 WAS NOT TO INCREASE COMPETITION BUT TO ALLOW AWARD TO BE MADE TO BRACELAND. THE FACT THAT ONLY THOSE BIDDERS WHO SUBMITTED BIDS ON THE FIRST SOLICITATION FOR THE 1971-1972 CONTRACT RESPONDED TO THE SECOND SOLICITATION DOES NOT ESTABLISH THE VALIDITY OF YOUR CLAIM. GPO STATES THAT MEANINGFUL COMPETITION WAS SOUGHT, AND WE NOTE THAT THE ENLARGED AREA INCLUDES SEVERAL METROPOLITAN CENTERS, SUCH AS WHEELING, WEST VIRGINIA, YOUNGSTOWN, OHIO, AND NEW CASTLE, PENNSYLVANIA, FROM WHICH ADDITIONAL COMPETITION MIGHT HAVE BEEN OBTAINED. IN LIGHT OF THE ABOVE, AND CONSIDERING THE REASONABLENESS OF A GEOGRAPHIC LIMITATION FOR CONTRACT PERFORMANCE, WE CAN FIND NOTHING IMPROPER IN THIS REGARD. SEE B-150703, FEBRUARY 15, 1963.

YOU ALSO INDICATE THAT THE CHANGE ALLOWING SPLICING OF FOLDOUTS LARGER THAN 36", INSTEAD OF 56", WAS MADE TO ACCOMMODATE BRACELAND. WE SEE NOTHING IN THE RECORD TO SUPPORT THIS ALLEGATION, AND WHILE GPO DID NOT REFER TO THIS POINT IN ITS REPORT, IT IS AN ESTABLISHED PRINCIPLE THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT ARE MATTERS PRIMARILY FOR THE PROCURING AGENCY. 44 COMP. GEN. 302 (1964). WE HAVE ALSO HELD THAT SPECIFICATIONS MUST BE DRAFTED SO AS TO REFLECT THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT, NOT WHAT MAY BE MOST DESIRABLE. 32 COMP. GEN. 384 (1953). IF ANYTHING, WE THINK THIS CHANGE CAN BE VIEWED AS ESTABLISHING A MINIMUM NEED WITH RESPECT TO FOLDOUTS RATHER THAN REQUIRING A DESIRED END PRODUCT.

WITH RESPECT TO THE USE OF COURIERS TO TRANSPORT CLASSIFIED MATERIAL, WE THINK THE GPO REPORT PROVIDES A REASONABLE EXPLANATION THAT REQUIRES NO FURTHER COMMENT FROM US.

BRACELAND BID FOR THE CURRENT CONTRACT FROM 3174 MAIN STREET, WEIRTON, WEST VIRGINIA, 37 MILES FROM PITTSBURGH. IT ALSO MAINTAINED ANOTHER FACILITY AT 3048 MAIN STREET. BOTH LOCATIONS WERE LEASED BY BRACELAND ON A SHORT TERM BASIS AND WE ARE INFORMALLY ADVISED THAT IT HAS RELOCATED TO STEUBENVILLE, OHIO. HOWEVER, IT DOES NOT FOLLOW THAT AWARD WAS MADE IMPROPERLY TO BRACELAND. THE RECORD INDICATES THAT A PREAWARD SURVEY VERIFIED THAT BRACELAND MAINTAINED THE FACILITIES REQUIRED BY THE IFB; THIS QUALIFIED BRACELAND FOR AWARD OF THE CONTRACT AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER, AND BRACELAND'S INTENT TO RELOCATE WOULD NOT, BY ITSELF, AFFECT THAT QUALIFICATION. FURTHERMORE, THERE IS NO LEGAL PROHIBITION AGAINST RELOCATING FACILITIES SO LONG AS THE TERMS OF THE CONTRACT ARE NOT BREACHED THEREBY. IN THIS RESPECT, WE NOTE THAT STEUBENVILLE IS WITHIN 65 MILES OF PITTSBURGH, SO THAT BRACELAND'S MOVE WOULD NOT VIOLATE THE PROXIMITY REQUIREMENT OF THE CONTRACT. SEE B- 172266, MAY 10, 1971 (50 COMP. GEN. ).

YOUR CLAIM THAT BRACELAND'S FACILITY WAS NOT EQUIPPED TO PERFORM THE CONTRACT IS BASED ON YOUR PERSONAL INSPECTION OF BRACELAND'S SHOP AT 3174 MAIN STREET, WHICH DID NOT HAVE A 36" PRESS REQUIRED FOR CERTAIN FOLD-IN OPERATIONS. HOWEVER, THE RECORD INDICATES THAT THE REQUIRED PRESS WAS INSTALLED IN THE 3048 MAIN STREET FACILITY ON SEPTEMBER 9, 1971, WHICH WAS PRIOR TO THE SECOND BID OPENING. WE HAVE NO REASON TO QUESTION THE CONTRACTING OFFICER'S FINDING OF RESPONSIBILITY ON THIS POINT. SEE 39 COMP. GEN. 705, 711 (1960).

YOU ALSO RAISE QUESTIONS CONCERNING THE SECURITY CLEARANCE GIVEN TO BRACELAND'S FACILITIES. YOU STATE THAT ONLY THE 3174 MAIN STREET FACILITY HAD BEEN GIVEN CLEARANCE PRIOR TO AWARD, AND THAT A REQUEST FOR CLEARANCE FOR 3048 MAIN STREET WAS NOT MADE UNTIL OCTOBER 7, 1971, WHICH WAS ONE WEEK AFTER AWARD. HOWEVER, THE GPO REPORTS THAT THE "NECESSARY SECURITY CLEARANCES WERE IN PROCESS AND OBTAINED PRIOR TO THE PLACEMENT OF ANY WORK." THIS IS FURTHER EXPLAINED IN A LETTER DATED JANUARY 12, 1972, FROM BRACELAND BROTHERS, INCORPORATED, TO US, WHICH STATES THAT "IT WAS AGREED BY DCASR THAT NO REQUEST FOR CLEARANCE BE MADE FOR THIS INSTALLATION UNTIL THERE WAS SOME ASSURANCE THAT AN AWARD FOR CLASSIFIED WORK WOULD BE MADE."

WE HAVE CAREFULLY CONSIDERED THE ENTIRE RECORD BEFORE US, INCLUDING ALL OF YOUR ALLEGATIONS AND YOUR FACTUAL NARRATIVE, AND MUST CONCLUDE THAT THERE HAS BEEN NO CLEAR SHOWING OF ILLEGAL OR IMPROPER ACTION ON THE PART OF GOVERNMENT PROCUREMENT PERSONNEL. THEREFORE, IN THE ABSENCE OF ANY BASIS FOR CANCELLING THE AWARD MADE TO BRACELAND, WE MUST DENY YOUR PROTEST.