B-175217, APR 6, 1972

B-175217: Apr 6, 1972

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IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION. EVEN THOUGH ONLY ONE BID WAS RECEIVED. TO THILMANY PULP & PAPER COMPANY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15. INVITATIONS WERE SENT TO 11 FIRMS. THE BID FROM JIFFY MANUFACTURING COMPANY WAS THE ONLY ONE RECEIVED. THE CONTRACT WAS AWARDED TO THAT FIRM ON JANUARY 11. YOU CONTEND THAT ON A PRIOR PROCUREMENT AND THE PRESENT PROCUREMENT YOUR FIRM WAS NOT SOLICITED TO BID BECAUSE THE WRONG BIDDERS LIST WAS USED AND. THERE WAS NOT FULL AND FREE COMPETITION. YOU ALSO CONTEND THAT THE ITEM BEING PROCURED IS AVAILABLE FROM YOU THROUGH THE GENERAL SERVICES ADMINISTRATION (GSA) STORE STOCK DEPOT AT LESS COST.

B-175217, APR 6, 1972

BID PROTEST - FAILURE TO SOLICIT - CLERICAL ERROR DECISION DENYING PROTEST OF THILMANY PULP AND PAPER COMPANY AGAINST AWARD OF A REQUIREMENTS-TYPE CONTRACT TO JIFFY MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE GOVERNMENT PRINTING OFFICE FOR THE FURNISHING OF LAMINATED SHIPPING BAGS. ABSENT ANY EVIDENCE OF DELIBERATE EXCLUSION, THE AGENCY'S FAILURE TO SOLICIT PROTESTANT THROUGH CLERICAL ERROR DOES NOT PROVIDE AN ADEQUATE BASIS FOR CANCELING THE INVITATION OR DISTURBING THE AWARD. B-171213, DECEMBER 31, 1970. FURTHER, IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION, EVEN THOUGH ONLY ONE BID WAS RECEIVED. B-156310, JUNE 10, 1965. IN VIEW OF THE GOVERNMENT'S OBLIGATIONS UNDER THE CONTRACT, THE PROTEST MUST BE DENIED.

TO THILMANY PULP & PAPER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE JIFFY MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. 22724, ISSUED BY THE DIRECTOR OF MATERIALS MANAGEMENT SERVICE, UNITED STATES GOVERNMENT PRINTING OFFICE.

THE INVITATION, ISSUED ON DECEMBER 10, 1971, SOLICITED BIDS ON A REQUIREMENTS CONTRACT BASIS FOR FURNISHING VARIOUS SIZES OF LAMINATED SHIPPING BAGS FOR THE PERIOD JANUARY 1 THROUGH JUNE 30, 1972. INVITATIONS WERE SENT TO 11 FIRMS. ON BID OPENING DATE, DECEMBER 27, 1971, THE BID FROM JIFFY MANUFACTURING COMPANY WAS THE ONLY ONE RECEIVED, AND THE CONTRACT WAS AWARDED TO THAT FIRM ON JANUARY 11, 1972.

YOU CONTEND THAT ON A PRIOR PROCUREMENT AND THE PRESENT PROCUREMENT YOUR FIRM WAS NOT SOLICITED TO BID BECAUSE THE WRONG BIDDERS LIST WAS USED AND, THEREFORE, THERE WAS NOT FULL AND FREE COMPETITION. YOU ALSO CONTEND THAT THE ITEM BEING PROCURED IS AVAILABLE FROM YOU THROUGH THE GENERAL SERVICES ADMINISTRATION (GSA) STORE STOCK DEPOT AT LESS COST.

THE ADMINISTRATIVE OFFICE AGREES WITH BOTH YOUR CONTENTIONS AND STATES:

"THE PROTESTOR CORRECTLY STATES THAT HE WAS NOT SOLICITED ON THE LAST TWO PROCUREMENTS ALTHOUGH HE REQUESTED AND WAS ASSURED HIS NAME WOULD BE PLACED ON THE PROPER LIST. THE PROTESTOR IS ALSO CORRECT IN STATING THAT THE MATERIAL IS AVAILABLE FROM THE GENERAL SERVICES ADMINISTRATION AT A PRICE WHICH IS LOWER THAN THE CONTRACT PRICE. IT APPEARS THAT THE FAILURE TO INCLUDE THE PROTESTOR ON THE LATEST SOLICITATION AND THE FAILURE TO NOTICE THAT THE MATERIAL WAS AVAILABLE FROM THE GENERAL SERVICES ADMINISTRATION AT A LOWER PRICE WAS DUE TO A COMPOUNDING OF CLERICAL ERRORS. I AM INFORMED THAT THE PROCEDURES HAVE SINCE BEEN STRENGTHENED TO PREVENT SUCH EVENTS IN THE FUTURE."

IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED HERE, WE HAVE HELD THAT WHERE THERE IS NO EVIDENCE OF A CONSCIOUS OR DELIBERATE INTENT TO EXCLUDE A PROSPECTIVE CONTRACTOR FROM PARTICIPATING IN THE COMPETITION, THE INADVERTENT FAILURE TO FURNISH A BID SET TO AN INTERESTED FIRM DOES NOT CONSTITUTE A SUFFICIENT BASIS TO CANCEL THE INVITATION OR TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. 34 COMP. GEN. 684 (1955); B- 171213, DECEMBER 31, 1970. MOREOVER, IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION EVEN THOUGH ONLY ONE BID WAS RECEIVED. B-156310, JUNE 10, 1965. WHILE IT WAS UNFORTUNATE THAT YOUR FIRM DID NOT HAVE AN OPPORTUNITY TO SUBMIT A BID, WE CANNOT SAY THAT THE PROCUREMENT WAS RENDERED LEGALLY DEFECTIVE THEREBY.

WITH REGARD TO YOUR CONTENTION THAT THE SHIPPING BAGS UNDER THIS CONTRACT CAN BE OBTAINED FROM THE GSA SUPPLY DEPOT AT LESS COST, THE CONTRACTING AGENCY ESTIMATES THAT ONLY A SMALL PORTION OF THE ESTIMATED QUANTITY IN THE CONTRACT WILL, IN FACT, BE PURCHASED. FURTHER, SINCE THE GOVERNMENT PRINTING OFFICE IS NOT AN AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, IT IS NOT REQUIRED TO PLACE ORDERS THROUGH THE GSA SUPPLY DEPOT. IN ANY EVENT, UNDER SECTION HB) OF THE REQUIREMENT CONTRACT AWARDED, THE GOVERNMENT IS OBLIGATED TO ORDER FROM THE CONTRACTOR ALL THE SUPPLIES OR SERVICES SET FORTH IN THE SCHEDULE WHICH ARE REQUIRED TO BE PURCHASED BY THE GOVERNMENT PRINTING OFFICE.

ACCORDINGLY, ON THE RECORD BEFORE US, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.