B-174348, DEC 29, 1971

B-174348: Dec 29, 1971

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PROTESTANT ALLEGES THAT BURNS DID NOT POSSESS A VALID PENNSYLVANIA DETECTIVE LICENSE NOR WAS AN APPROVED CORPORATION OF THAT STATE WHEN THE BIDS WERE OPENED. ALTHOUGH A STATE LICENSE IS NECESSARY TO THE PERFORMANCE OF THE CONTRACT. THERE IS NO SPECIFIC REQUIREMENT THAT THE SUCCESSFUL BIDDER BE AN APPROVED CORPORATION. THERE IS NO LEGAL BASIS TO SUPPORT YOUR PROTEST. TO FITZPATRICK & SMITH: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF SUPERIOR INVESTIGATIVE SERVICES. AT PAGE 15 OF THE INVITATION THE FOLLOWING NOTE APPEARED: "THE BIDDER MUST HAVE A LICENSE FROM THE STATE OF PENNSYLVANIA TO CONDUCT THE BUSINESS OF WATCH-GUARD OR PATROL AGENCY AT THE TIME OF SUBMISSION OF HIS BID. THE BASIS OF YOUR PROTEST ON BEHALF OF SUPERIOR IS THAT BURNS DID NOT POSSESS A VALID PENNSYLVANIA DETECTIVE LICENSE.

B-174348, DEC 29, 1971

BID PROTEST - LICENSE REQUIREMENT - BIDDER RESPONSIBILITY DECISION DENYING PROTEST OF SUPERIOR INVESTIGATIVE SERVICES, INC., OF AN AWARD TO BURNS SECURITY SYSTEMS, INC., UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION CONCERNING THE SERVICES OF UNIFORMED ARMED GUARDS AT TWO INTERNAL REVENUE SERVICE BUILDINGS IN PHILADELPHIA, PENNSYLVANIA. PROTESTANT ALLEGES THAT BURNS DID NOT POSSESS A VALID PENNSYLVANIA DETECTIVE LICENSE NOR WAS AN APPROVED CORPORATION OF THAT STATE WHEN THE BIDS WERE OPENED. ALTHOUGH A STATE LICENSE IS NECESSARY TO THE PERFORMANCE OF THE CONTRACT, IT MAY BE PROVIDED SUBSEQUENT TO THE BID OPENING. 39 COMP. GEN. 655(1960); 41 COMP. GEN. 106(1961). SECONDLY, THERE IS NO SPECIFIC REQUIREMENT THAT THE SUCCESSFUL BIDDER BE AN APPROVED CORPORATION. IN VIEW OF THESE FACTS, THERE IS NO LEGAL BASIS TO SUPPORT YOUR PROTEST.

TO FITZPATRICK & SMITH:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF SUPERIOR INVESTIGATIVE SERVICES, INC. (SUPERIOR), PROTESTING THE AWARD OF A CONTRACT TO BURNS SECURITY SYSTEMS INC. (BURNS), UNDER INVITATION FOR BIDS (IFB) NO. 2PBO-JA-729, ISSUED ON APRIL 8, 1971, BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE INSTANT INVITATION REQUESTED BIDS FOR UNIFORMED ARMED GUARD SERVICE AT TWO INTERNAL REVENUE SERVICE BUILDINGS IN PHILADELPHIA, PENNSYLVANIA, FOR A 12-MONTH PERIOD BEGINNING JUNE 1, 1971, AND ENDING MAY 31, 1972. THE 14 BIDS SUBMITTED AND OPEN ON APRIL 28, 1971, BURNS SUBMITTED THE LOWEST BID.

AT PAGE 15 OF THE INVITATION THE FOLLOWING NOTE APPEARED:

"THE BIDDER MUST HAVE A LICENSE FROM THE STATE OF PENNSYLVANIA TO CONDUCT THE BUSINESS OF WATCH-GUARD OR PATROL AGENCY AT THE TIME OF SUBMISSION OF HIS BID, OR HIS BID SHALL BE CONSIDERED NON-RESPONSIVE."

THE BASIS OF YOUR PROTEST ON BEHALF OF SUPERIOR IS THAT BURNS DID NOT POSSESS A VALID PENNSYLVANIA DETECTIVE LICENSE, NOR WAS BURNS AN APPROVED PENNSYLVANIA CORPORATION AT THE TIME THE BIDS WERE OPENED ON APRIL 28, 1971. THIS WAS ALSO THE BASIS OF YOUR PROTEST TO GSA ON AUGUST 24, 1971, WHICH WAS DENIED ON SEPTEMBER 9, 1971. IN THAT LETTER GSA ADVISED YOUR OFFICE THAT ON JULY 19, 1971, IT RECEIVED A COPY OF THE NECESSARY LICENSE FROM BURNS, AND ON JULY 26, 1971, THE CONTRACTING OFFICER DETERMINED THAT BURNS, WAS A RESPONSIBLE BIDDER UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310.5, AND THE CONTRACT WAS AWARDED TO THAT FIRM ON THAT DATE.

IT ALSO APPEARS THAT GSA PROPERLY ADVISED YOU OF THE WELL ESTABLISHED RULE OF THIS OFFICE, TO THE EFFECT THAT FAILURE TO SUBMIT PERMITS OR LICENSES AT THE TIME OF BID OPENING CONCERNS THE QUESTION OF A BIDDER'S RESPONSIBILITY, RATHER THAN BID EVALUATION. WHERE, AS HERE, A STATE LICENSE IS CONSIDERED NECESSARY TO PERFORMANCE OF THE CONTRACT, IT CAN ONLY BE CONSIDERED IN DETERMINING THE BIDDER'S RESPONSIBILITY, AND IT MAY THEREFORE BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID, EVEN THOUGH THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN BID REJECTION. 39 COMP. GEN. 655 (1960); 41 COMP. GEN. 106 (1961).

IN ACCORDANCE WITH THE FOREGOING, WE MUST CONCLUDE THAT BURNS WAS PROPERLY PERMITTED TO FURNISH THE STATE LICENSE AFTER BID OPENING, AND ITS BID WAS PROPERLY CONSIDERED FOR AWARD.

WITH REFERENCE TO YOUR CONTENTION THAT BURNS WAS NOT AN APPROVED CORPORATION IN THE STATE OF PENNSYLVANIA AT THE TIME OF SUBMISSION OF BIDS, THERE WAS NO SPECIFIC REQUIREMENT IN THE INVITATION THAT THE BIDDER BE AN APPROVED CORPORATION. HOWEVER, IT IS REPORTED THAT BURNS DID QUALIFY AS A FOREIGN CORPORATION FOR DOING BUSINESS IN PENNSYLVANIA ON MAY 7, 1971.

UNDER THESE CIRCUMSTANCES THERE IS NO LEGAL BASIS TO OBJECT TO THE AWARD AS MADE TO BURNS, AND YOUR PROTEST IS THEREFORE DENIED.