B-180064, JAN 17, 1975

B-180064, JAN 17, 1975

PRIOR PROCUREMENT ADMINISTRATIVE REPORT AND DECISION HAVING ADVISED PROTESTERS THAT PROCURING ACTIVITY DID NOT INTEND TO HAVE REQUIREMENT FOR CERTIFICATE OF MARINE CORPS APPROVAL BEING FURNISHED WITH BID, NO OBJECTION WILL BE STATED TO AWARD MADE TO BIDDER WHO DID NOT FURNISH CERTIFICATE UNDER READVERTISEMENT, SINCE IT IS APPARENT THAT REQUIREMENT WAS INCLUDED THROUGH ERROR AND THERE IS NO REASONABLE BASIS FOR CONCLUDING THAT INCLUSION OF REQUIREMENT HAD ADVERSE EFFECT ON COMPETITION.

WEINTRAUB BROTHERS COMPANY; S. ABRAHAMS & CO., INC.:

WEINTRAUB BROTHERS COMPANY (WEINTRAUB) AND S. ABRAHAMS & CO., INC. (ABRAHAMS), PROTESTED THE AWARD TO FECHHEIMER BROTHERS CO. (FECHHEIMER) OF A CONTRACT FOR UNIFORMS FOR UNITED STATES PARK POLICE UNDER INVITATION FOR BIDS (IFB) INV-3000-4-0123, ISSUED BY THE NATIONAL PARK SERVICE.

THE PROCUREMENT IS THE SAME ONE THAT WAS CONSIDERED IN MATTER OF S. ABRAHAMS & CO., INC., B-180064, MAY 10, 1974, 53 COMP. GEN. . IN THAT DECISION OUR OFFICE CONSIDERED A PROPOSAL OF THE PROCUREMENT ACTIVITY TO CANCEL THE IFB. THE BASIS FOR THE PROPOSAL WAS THAT THE IFB CONTAINED AN UNNECESSARY REQUIREMENT THAT BIDDERS ATTACH TO THEIR BIDS A CERTIFICATE OF MARINE CORPS APPROVAL OF MANUFACTURE. THE MAY 10 DECISION HELD THAT SINCE THERE WAS NO REASONABLE BASIS FOR CONCLUDING THAT THE REQUIREMENTS HAD AN ADVERSE EFFECT ON COMPETITION AND TWO OF THE THREE BIDS SUBMITTED WERE NONRESPONSIVE NOTWITHSTANDING THE INCLUSION OR EXCLUSION OF THE APPROVAL REQUIREMENT, THE BIDDER COMPLYING WITH ALL THE TERMS AND CONDITIONS OF THE IFB SHOULD BE CONSIDERED FOR AWARD. THE PROCURING ACTIVITY ATTEMPTED TO IMPLEMENT THE DECISION BY MAKING AN AWARD TO ABRAHAMS; HOWEVER, ITS BID HAD EXPIRED AND IT REFUSED TO EXTEND THE OFFER. THEREFORE, THE PROCURING ACTIVITY READVERTISED THE PROCUREMENT. THROUGH INADVERTENCE, THE REQUIREMENT FOR THE CERTIFICATE OF MARINE CORPS APPROVAL FOR MANUFACTURE WAS INCLUDED IN THE NEW IFB.

PRIOR TO THE OPENING OF BIDS UNDER THE NEW IFB, FECHHEIMER PROTESTED TO OUR OFFICE THE INCLUSION OF THE REQUIREMENT FOR THE CERTIFICATE OF MARINE CORPS APPROVAL. DESPITE THE FACT THAT INFORMAL ADVICE OF THE PROTEST WAS FURNISHED TO THE PROCUREMENT OFFICE TWO DAYS PRIOR TO BID OPENING, THAT OFFICE PROCEEDED TO OPEN THE BIDS AS SCHEDULED. SINCE THE PROCUREMENT OFFICE CONSIDERED THE REQUIREMENT UNNECESSARY AND WAS ADVISED OF THE REPEATED INCLUSION OF THE REQUIREMENT IN THE IFB PRIOR TO BID OPENING, THAT OFFICE SHOULD HAVE ISSUED AN AMENDMENT TO THE IFB PRIOR TO BID OPENING. HOWEVER, AFTER BIDS WERE OPENED, THE PROCURING ACTIVITY CONSIDERED THE PROTEST MERITORIOUS, WAIVED THE CERTIFICATE REQUIREMENT, AND MADE AWARD TO FECHHEIMER WHEREUPON FECHHEIMER WITHDREW THE PROTEST. WEINTRAUB AND ABRAHAMS THEREAFTER PROTESTED THE AWARD TO FECHHEIMER.

FOUR BIDS WERE RECEIVED UNDER IFB -0123. WEINTRAUB, ABRAHAMS AND HOWARD UNIFORM COMPANY WERE THE LOW, SECOND LOW AND HIGH BIDDERS, RESPECTIVELY. HOWEVER, EACH WAS NONRESPONSIVE FOR TAKING AN EXCEPTION TO THE DELIVERY SCHEDULE. FECHHEIMER, THE THIRD LOW BIDDER, WAS RESPONSIVE, EXCEPT FOR THE CERTIFICATE REQUIREMENT. WEINTRAUB AND ABRAHAMS HAVE PROTESTED THE WAIVER OF THE CERTIFICATE.

THE REQUIREMENT IN THE IFB WITH RESPECT TO THE CERTIFICATE WAS AS FOLLOWS:

"SINCE IT IS THE DESIRE OF THE UNITED STATES PARK POLICE TO ACQUIRE UNIFORM GARMENTS MADE IN GENERAL ACCORDANCE WITH THE EXACT SPECIFICATIONS OF THE U.S. MARINE CORPS, EACH BIDDER IS REQUIRED TO ATTACH TO HIS BID A PHOTOSTATIC OR CERTIFIED COPY OF A CURRENT MARINE CORPS FACTORY APPROVAL

"FAILURE TO ENCLOSE COPY OF CERTIFICATE OF MARINE CORPS APPROVAL OF MANUFACTURE, OR FAILURE TO SUBMIT SATISFACTORY SAMPLE GARMENTS AND SAMPLES AS LATER REQUIRED HEREIN, SHALL BE CAUSE FOR DISQUALIFICATION TO RECEIVE THE CONTRACT."

THAT IT WAS NOT THE INTENTION OF THE PROCURING ACTIVITY TO INCLUDE THE REQUIREMENT IN IFB -0123 WAS MANIFESTED IN THE ADMINISTRATIVE REPORT WHICH WAS PREPARED ON THE PRIOR IFB (0035). COPIES OF THE REPORT WERE SENT TO WEINTRAUB AND ABRAHAMS PRIOR TO THE MAY 10, 1974, DECISION IN B-180064. FURTHER, THE MAY 10 DECISION, COPIES OF WHICH WERE SENT TO ABRAHAMS AND THE ATTORNEY FOR WEINTRAUB, REPORTED THAT THE PROCURING ACTIVITY BELIEVED THAT THE REQUIREMENT WAS EXCESSIVE. THUS, IT IS APPARENT THAT THE CERTIFICATE REQUIREMENT WAS INCLUDED IN IFB 0123 THROUGH ERROR AND THE PROTESTERS WERE ON NOTICE OF THAT FACT BEFORE BIDDING. IN THESE CIRCUMSTANCES AND SINCE AS STATED IN THE MAY 10 DECISION WE CAN FIND NO REASONABLE BASIS FOR CONCLUDING THAT THE INCLUSION OF THE REQUIREMENT HAD AN ADVERSE EFFECT ON COMPETITION, WE WILL NOT OBJECT TO THE AWARD THAT WAS MADE TO FECHHEIMER.

ACCORDINGLY, THE PROTEST OF WEINTRAUB AND ABRAHAMS ARE DENIED.