B-177211, MAR 9, 1973

B-177211: Mar 9, 1973

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THERE IS NO BASIS TO OBJECT TO AN AWARD TO A LOW RESPONSIBLE BIDDER SIMPLY BECAUSE HIS BID PRICE WAS TOO LOW. THE DETERMINATION AS TO WHETHER THE REQUIRED DEGREE OF COMPETITION HAS BEEN OBTAINED IN A PARTICULAR PROCUREMENT IS A DETERMINATION IN WHICH THERE IS A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION. SUCH DISCRETION CANNOT BE SAID TO HAVE BEEN VIOLATED UNDER THIS IFB. WHICH WAS ISSUED ON JUNE 30. FOUR BIDS WERE RECEIVED AND OPENED ON JULY 25. THE CONTRACT WAS AWARDED FOR ALL ITEMS TO EVERGREEN ON AUGUST 4. THE NEXT LOW BID WAS $27. WHILE YOUR FIRM WAS THE HIGH BIDDER AT $34. IT IS YOUR POSITION THAT THE AWARD IS IMPROPER BECAUSE EVERGREEN'S BID PRICES ARE TOO LOW. THAT PRICE WAS THE RESULT OF HEW'S INABILITY TO OBTAIN BIDS IN RESPONSE TO ITS INVITATION ISSUED DURING 1972.

B-177211, MAR 9, 1973

BID PROTEST - TOO LOW BID PRICE - REQUIRED DEGREE OF COMPETITION DECISION DENYING THE PROTEST OF FOREST LAWN MEMORIAL CHAPEL, INC., AGAINST THE AWARD OF A CONTRACT TO EVERGREEN MEMORIAL CHAPEL UNDER AN IFB ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE FOR MORTUARY SERVICES. THERE IS NO BASIS TO OBJECT TO AN AWARD TO A LOW RESPONSIBLE BIDDER SIMPLY BECAUSE HIS BID PRICE WAS TOO LOW. ALSO, THE DETERMINATION AS TO WHETHER THE REQUIRED DEGREE OF COMPETITION HAS BEEN OBTAINED IN A PARTICULAR PROCUREMENT IS A DETERMINATION IN WHICH THERE IS A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION. SUCH DISCRETION CANNOT BE SAID TO HAVE BEEN VIOLATED UNDER THIS IFB. SEE 50 COMP. GEN. 382 (1970).

TO FOREST LAWN MEMORIAL CHAPEL, INCORPORATED:

WE REFER TO YOUR LETTER DATED SEPTEMBER 25, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO EVERGREEN MEMORIAL CHAPEL (EVERGREEN) UNDER INVITATION FOR BIDS NO. HSM 76-SOL-5-73, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW).

THE INVITATION, WHICH WAS ISSUED ON JUNE 30, 1972, CALLED FOR BIDS FOR MORTUARY SERVICES, INCLUDING: PREPARATION FOR BURIAL OR SHIPMENT; LOCAL INTERMENT; CREMATION SERVICES; AND SHIPMENT TO PLACE OF INTERMENT. FOUR BIDS WERE RECEIVED AND OPENED ON JULY 25, 1972. THE CONTRACT WAS AWARDED FOR ALL ITEMS TO EVERGREEN ON AUGUST 4, 1972, AS THE LOW BIDDER AT A TOTAL OF $14,759.00. THE NEXT LOW BID WAS $27,540, WHILE YOUR FIRM WAS THE HIGH BIDDER AT $34,425.

IT IS YOUR POSITION THAT THE AWARD IS IMPROPER BECAUSE EVERGREEN'S BID PRICES ARE TOO LOW. IN SUPPORT OF THIS CONTENTION YOU NOTE THAT WHILE THE LOW BIDDER QUOTED A PRICE OF $168 FOR ADULT PREPARATION SERVICES OTHER LOCAL AGENCIES PAY $477 FOR SUBSTANTIALLY THE SAME SERVICES.

THE CONTRACTING OFFICER INFORMS US THAT ALTHOUGH HEW DID PAY $477 FOR SUCH SERVICES DURING FISCAL YEAR 1972, THAT PRICE WAS THE RESULT OF HEW'S INABILITY TO OBTAIN BIDS IN RESPONSE TO ITS INVITATION ISSUED DURING 1972. WE ARE FURTHER INFORMED THAT PRICES COMPARABLE TO EVERGREEN'S AWARD PRICES HAVE BEEN OBTAINED WHEN BIDS HAVE BEEN RECEIVED IN FISCAL YEARS PRIOR TO 1972. IN ANY EVENT, SINCE THE LOW BIDDER WAS DETERMINED TO BE RESPONSIBLE, WE FIND NO BASIS TO OBJECT TO THE AWARD ON THE GROUND THAT EVERGREEN'S BID PRICES WERE TOO LOW.

YOU ALSO ALLEGE THAT THE REQUIREMENT FOR CREMATION SERVICES CONTAINED IN THE INVITATION WAS INVALID BECAUSE THE ONLY FACILITY WHICH CAN PERFORM SUCH SERVICES IS A SUBSIDIARY OF THE SUCCESSFUL BIDDER, AND THEREFORE THE LOW BIDDER WAS IN A POSITION TO DICTATE THE OTHER BIDDERS' PRICES.

HEW INDICATED TO US THAT CREMATION SERVICES WERE ALSO AVAILABLE FROM THE BRUCE FUNERAL HOME AND FROM ANOTHER LOCAL CREMATORY NOT ASSOCIATED WITH ANY OF THE BIDDERS. HOWEVER, BY LETTER DATED FEBRUARY 3, 1973, THE DIRECTOR OF THE BRUCE FUNERAL HOME INFORMED US THAT THE BRUCE FUNERAL HOME DOES NOT POSSESS A CREMATORY BUT THAT SUCH SERVICES ARE AVAILABLE THROUGH SPENARD HEIGHTS MORTUARY, A BRANCH OF EVERGREEN, AND GREEN'S MEMORIAL CHAPEL. NOTWITHSTANDING THE APPARENT INACCURACY OF THE HEW REPORT IN REGARD TO THE BRUCE FUNERAL HOME, THE RECORD REVEALS THAT TWO RESPONSIVE BIDS WERE RECEIVED ON THE PORTION OF THE INVITATION CALLING FOR CREMATION SERVICES. WHETHER THE REQUIRED DEGREE OF COMPETITION HAS BEEN OBTAINED IN A PARTICULAR PROCUREMENT IS SUBSTANTIALLY A SUBJECTIVE DETERMINATION TO WHICH A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION MUST INHERE. SEE 50 COMP. GEN. 382 (1970). IN THE INSTANT CASE WHERE TWO RESPONSIVE BIDS WERE RECEIVED FOR A PARTICULAR SERVICE WE CANNOT SAY THAT THE MINIMUM STANDARD HAS NOT BEEN MET. FURTHERMORE, IF A BIDDER CHOOSES TO QUESTION THE VALIDITY OF A REQUIREMENT CONTAINED IN THE INVITATION THE PROPER TIME FOR RAISING SUCH QUESTION IS PRIOR TO BID OPENING. SEE 50 COMP. GEN. 565, 576 (1971).

UNDER THE CIRCUMSTANCES WE MUST DENY YOUR PROTEST.