B-174619, MAR 27, 1972

B-174619: Mar 27, 1972

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PROTESTANT'S CONTENTION IS WITHOUT MERIT SINCE THE ADEQUACY OF ANY PARTICULAR SOLICITATION MUST BE BASED ON WHETHER REASONABLE COMPETITION AND PRICES WERE OBTAINED AND NOT WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. 50 COMP. WAS REASONABLE AND IN FACT LOWER THAN THE PRICES RECEIVED BY A. THE PROTEST MUST BE DENIED SINCE BIDS HAVE ALREADY BEEN OPENED AND THE COMP. C. BALL COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 23. THE SUBJECT IFB WAS ISSUED ON OCTOBER 29. THE SUBJECT IFB WAS OPENED ON NOVEMBER 16. TWO BIDS WERE RECEIVED. WE ARE INFORMED THAT A WAIVER OF FIRST ARTICLE TESTING HAS BEEN APPROVED AND AWARD PROPOSED TO DUMONT AT A TOTAL PRICE OF $8. YOUR PROTEST IS GROUNDED ON TWO BASIC CONTENTIONS: (1) THAT YOUR FIRM HAS NOT BEEN AFFORDED A REASONABLE OPPORTUNITY TO BID ON THE SUBJECT IFB.

B-174619, MAR 27, 1972

BID PROTEST - REASONABLE OPPORTUNITY TO BID - EXCESSIVE COST TO GOVERNMENT DECISION DENYING PROTEST OF A. C. BALL COMPANY AGAINST PROPOSED AWARD OF A CONTRACT TO DUMONT AVIATION UNDER AN IFB ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR A PROCUREMENT OF HYDRAULIC SWIVEL JOINTS. THE PROVISIONS OF ASPR 1-1003.1(A) ONLY REQUIRE ADVERTISEMENT IN THE COMMERCE BUSINESS DAILY OF PROCUREMENTS WHICH MAY RESULT IN AWARDS IN EXCESS OF $10,000. ALTHOUGH THE PROCURING AGENCY ADMITS THAT IT INADVERTENTLY FAILED TO SOLICIT PROTESTANT'S FIRM, IT DID PROVIDE AN IMMEDIATE RESPONSE TO THE DELAYED REQUEST FOR A COPY OF THE IFB. PROTESTANT'S CONTENTION IS WITHOUT MERIT SINCE THE ADEQUACY OF ANY PARTICULAR SOLICITATION MUST BE BASED ON WHETHER REASONABLE COMPETITION AND PRICES WERE OBTAINED AND NOT WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. 50 COMP. GEN. 565 (1971). WITH REGARD TO THE SECOND GROUND OF PROTEST, THE RECORD INDICATES THAT DUMONT'S UNIT PRICE, AFTER THE COSTS OF FIRST ARTICLE TESTING HAD BEEN WAIVED, WAS REASONABLE AND IN FACT LOWER THAN THE PRICES RECEIVED BY A. C. BALL COMPANY UNDER TWO PREVIOUS CONTRACTS. THE PROTEST MUST BE DENIED SINCE BIDS HAVE ALREADY BEEN OPENED AND THE COMP. GEN. DOES NOT SEE ANY COMPELLING REASON TO CANCEL THE INVITATION.

TO A. C. BALL COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 23, 1971, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. DSA 700-72-B-0924, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE SUBJECT IFB WAS ISSUED ON OCTOBER 29, 1971, FOR THE PROCUREMENT OF 231 HYDRAULIC SWIVEL JOINTS. THE SUBJECT IFB WAS OPENED ON NOVEMBER 16, 1971. TWO BIDS WERE RECEIVED, ONE FROM DUMONT AVIATION (DUMONT) AT $35.70 EACH PLUS $3,224 FOR FIRST ARTICLE TESTING, THE OTHER FROM CHICKSAN DIVISION, FMC CORPORATION AT $63.65 EACH. WE ARE INFORMED THAT A WAIVER OF FIRST ARTICLE TESTING HAS BEEN APPROVED AND AWARD PROPOSED TO DUMONT AT A TOTAL PRICE OF $8,246.70. NOTICE OF AWARD HAS BEEN WITHHELD PENDING THE RESOLUTION OF THE SUBJECT PROTEST.

YOUR PROTEST IS GROUNDED ON TWO BASIC CONTENTIONS: (1) THAT YOUR FIRM HAS NOT BEEN AFFORDED A REASONABLE OPPORTUNITY TO BID ON THE SUBJECT IFB, AND (2) THAT THE PRICE QUOTED BY DUMONT IS UNREASONABLY HIGH.

IN SUPPORT OF YOUR CONTENTION THAT YOUR FIRM WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO BID ON THE SUBJECT IFB, YOU PUT FORTH THE FOLLOWING ARGUMENTS: (1) THE 18-DAY PERIOD ALLOWED FOR THE SUBMISSION OF BIDS WAS INADEQUATE IN VIEW OF THE FACT THAT ON SEPTEMBER 10, THE AGENCY CANCELLED IFB NO. DSA-71-B-2752 (IFB 2752), WHICH SOLICITED BIDS FOR THE SAME ITEM FOR THE REASON THAT THE ITEM WAS NO LONGER NEEDED; (2) BY LETTER DATED NOVEMBER 10, YOU REQUESTED A COPY OF THE IFB, BUT YOU DID NOT RECEIVE THE AGENCY'S RESPONSE WHICH WAS DATED NOVEMBER 16 (THE DATE OF BID OPENING) UNTIL AFTER THE BID OPENING; ACCORDINGLY, YOU ASSERT THAT THE OPENING DATE SHOULD HAVE BEEN EXTENDED; (3) SINCE IFB NO. DSA 700-72-B- 0492 (IFB 0492), WHICH SOLICITED BIDS FOR THE SAME ITEM, WAS CANCELLED ONLY TWO WEEKS BEFORE AND YOUR FIRM HAD SUPPLIED THE ITEM UNDER TWO PREVIOUS CONTRACTS, THE GOVERNMENT HAD A DUTY TO SEND YOU A COPY OF THE IFB, AND FINALLY (4) THE PROCUREMENT WAS NOT ADVERTISED IN THE COMMERCE BUSINESS DAILY.

IN REGARD TO YOUR FIRST CONTENTION WE ARE INFORMED BY THE AGENCY THAT A REQUEST TO CANCEL IFB 2752 DUE TO LACK OF FUNDS WAS RECEIVED BY THE CONTRACTING OFFICER. THE PURCHASE REQUEST WAS CANCELLED ON JULY 6, 1971, BUT APPROVAL TO CANCEL THE IFB WAS NOT OBTAINED UNTIL AUGUST 30. THE IFB WAS FORMALLY CANCELLED BY NOTICE DATED SEPTEMBER 10. THE NOTICE JUSTIFIED CANCELLATION ON THE BASIS THAT THE SUPPLIES WERE NO LONGER NEEDED, BUT IN ACTUALITY THE PROCUREMENT HAD BEEN CANCELLED EARLIER BECAUSE OF A LACK OF FUNDS.

IN REGARD TO YOUR REQUEST FOR A COPY OF THE IFB DATED NOVEMBER 10, WE ARE INFORMED BY THE AGENCY THAT YOUR LETTER WAS NOT RECEIVED AT THE ACTIVITY UNTIL NOVEMBER 16 AND THAT A RESPONSE WAS MAILED TO YOUR FIRM ON THAT DATE. IN THE CIRCUMSTANCES WE CANNOT SAY THAT THE ACTIVITY WAS UNDER ANY DUTY TO EXTEND THE OPENING DATE.

IN CONNECTION WITH YOUR CONTENTION THAT THE GOVERNMENT WAS UNDER AN OBLIGATION TO SEND YOU A COPY OF THE IFB ON THE INITIATION OF THE PROCUREMENT, THE AGENCY ADMITS THAT THE FAILURE TO SOLICIT YOUR FIRM WAS AN INADVERTENT ERROR SINCE NORMAL PRACTICE WOULD HAVE DICTATED THAT YOUR FIRM BE SOLICITED DUE TO YOUR RESPONSE TO IFB 0492.

IN RESOLVING QUESTIONS CONCERNING THE ADEQUACY OF THE SOLICITATION OF SUPPLY SOURCES, WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. SEE 50 COMP. GEN. 565 (1971).

IN ADDITION, YOU DENY THAT THE GOVERNMENT WILL BE AFFORDED A REASONABLE PRICE FROM DUMONT. YOU ALLEGE THAT DUMONT'S PRICE OF $35.70 EACH PLUS $13.95 FOR FIRST ARTICLE TESTING, TOTALING $49.65 EACH, UNDER THE SUBJECT IFB CANNOT BE CONSIDERED REASONABLE WHEN DUMONT'S PRICE OF $49.80 EACH (EXCLUSIVE OF FIRST ARTICLE TESTING), WAS CONSIDERED UNREASONABLY HIGH UNDER IFB 0492. IT MUST BE NOTED THAT THE REQUIREMENT FOR FIRST ARTICLE TESTING HAD BEEN WAIVED FOR DUMONT UNDER IFB 0492 AND HAS BEEN WAIVED UNDER THE SUBJECT IFB, THEREBY NEGATING THE NECESSITY OF ADDING THE TESTING FEE TO EITHER OF DUMONT'S UNIT PRICES. THEREFORE, IT CAN BE SEEN THAT WHEN THE TESTING FEES ARE ELIMINATED, DUMONT'S UNIT PRICE OF $35.70 UNDER THE SUBJECT IFB IS CONSIDERABLY LESS THAN ITS UNIT PRICE OF $49.65 UNDER IFB 0492. ACCORDINGLY, IT APPEARS THAT DUMONT'S PRICE UNDER THE SUBJECT IFB IS REASONABLE WHEN COMPARED WITH PRICES OFFERED UNDER THE EARLIER INVITATION. IN ADDITION, WE NOTE THAT DUMONT'S UNIT PRICE IS LOWER THAN THE UNIT PRICE WHICH YOUR FIRM RECEIVED UNDER TWO PREVIOUS CONTRACTS. IN VIEW OF THE FACT THAT A REASONABLE PRICE HAS BEEN OBTAINED, WE CANNOT SAY THAT THE AGENCY'S FAILURE TO SOLICIT YOUR FIRM PROVIDES A BASIS FOR A CANCELLATION OF THE SUBJECT IFB.

IN REGARD TO YOUR CONTENTION THAT THE PROCUREMENT WAS NOT PROPERLY ADVERTISED IN THE COMMERCE BUSINESS DAILY WE NOTE FROM THE FILE THAT THE PROCUREMENT HAD AN ESTIMATED VALUE OF $7,823.40 WHEN ISSUED, WHILE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1003.1(A), ONLY REQUIRES PUBLICATION IN THE COMMERCE BUSINESS DAILY OF PROCUREMENTS WHICH MAY RESULT IN AN AWARD IN EXCESS OF $10,000.

IN VIEW OF THE FACT THAT BIDS HAVE BEEN OPENED AND PRICES DISCLOSED WE DO NOT BELIEVE THE RECORD EVIDENCES THE COMPELLING REASONS NEEDED TO JUSTIFY REJECTION OF BIDS AND CANCELLATION OF THE INVITATION.

IN ACCORDANCE WITH THE FOREGOING, YOUR PROTEST MUST BE DENIED.