B-180091, JUN 7, 1974

B-180091, JUN 7, 1974

1. PROCURING ACTIVITY HAD SUFFICIENT REASON TO CANCEL SOLICITATION PRIOR TO BID OPENING PURSUANT TO FPR 1-2.208(A) WHERE QUANTITY OF NEEDED SERVICES WAS GROSSLY OVERSTATED. 2. WHERE SOLICITATION WAS CANCELED BECAUSE DEPARTMENT'S ACTUAL MINIMUM NEEDS FOR PRESS CLIPPING SERVICES WERE GROSSLY OVERSTATED IN SOLICITATION, ACTION OF DEPARTMENT IN PROCURING CURRENT NEEDS FOR PRESS CLIPPING SERVICES UNDER EXISTING GSA FEDERAL SUPPLY SCHEDULE CONTRACT WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION.

TO PRESS INTELLIGENCE, INC.; INTERNATIONAL PRESS CLIPPING BUREAU, INC.; BURRELLE'S PRESS CLIPPING SERVICE:

ON NOVEMBER 11, 1973, INVITATION FOR BIDS (IFB) NO. 27-74-HEW-OS WAS ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). THE IFB SOLICITED BIDS FOR AN ANNUAL REQUIREMENTS-TYPE CONTRACT COVERING THE FURNISHING OF PRESS CLIPPING SERVICES FOR SEVERAL HEW HEADQUARTERS OFFICES LOCATED IN WASHINGTON, D.C., FOR THE CALENDAR YEAR 1974. THE BID OPENING DATE WAS DECEMBER 3, 1973. ON PAGE 6 OF THE SOLICITATION UNDER PARAGRAPH 2.1 OF THE SPECIFICATIONS PROSPECTIVE BIDDERS WERE ADVISED AS FOLLOWS:

"ARTICLE 2.0 - SPECIFICATIONS

"2.1 - THE NEWSPAPER CLIPPING SERVICE REQUIRED UNDER THIS CONTRACT SHALL INCLUDE A NATIONWIDE COVERAGE FROM A SUBSTANTIAL SAMPLING OF DAILY AND SUNDAY ENGLISH LANGUAGE NEWSPAPER PUBLISHED IN ALL STATES, COVERING ALL IMPORTANT POPULATION CENTERS AND INDUSTRIAL AND GEOGRAPHICAL AREAS. SUCH SELECTION SHALL TOTAL APPROXIMATELY 1800 DAILIES, 9000 WEEKLIES AND 4000 MAGAZINES AND PERIODICALS INCLUDING THE WEEKLY/DAILY NEGRO PRESS."

BY LETTER DATED NOVEMBER 19, 1973, TO OUR OFFICE, PRESS INTELLIGENCE, INC., PROTESTED THE ISSUANCE OF THE SOLICITATION IN ITS PRESENT FORM AS BEING UNDULY AND EXCESSIVELY RESTRICTIVE. PRESS INTELLIGENCE CONTENDED THAT THE NUMBER OF PUBLICATIONS TO BE SAMPLED WAS IN FACT EXCESSIVE TO THE NEEDS OF THE GOVERNMENT AND WOULD RESTRICT BIDDING TO THE THREE LARGE BUSINESS FIRMS IN THE PRESS CLIPPING FIELD. AS A RESULT OF THIS PROTEST, THE PROCUREMENT OFFICE POSTPONED THE BID OPENING FROM DECEMBER 3 TO DECEMBER 7, 1973, IN ORDER THAT THE NEEDS OF THE GOVERNMENT MIGHT BE REEVALUATED.

THE OFFICES WHICH REQUIRED PRESS CLIPPING SERVICES WERE REQUESTED TO REEXAMINE THEIR NEEDS IN TERMS OF MINIMUM REQUIREMENTS AND THE REEXAMINATION INDICATED THAT BOTH THE NUMBER OF PUBLICATIONS TO BE SAMPLED (APPROXIMATELY 1,800) AND THE NUMBER OF PRESS CLIPPINGS REQUIRED (75,000 PER 12-MONTH PERIOD) STIPULATED IN THE INVITATION GROSSLY OVERSTATED THE MINIMUM REQUIREMENTS OF HEW. REVISED ESTIMATES INDICATED THAT A PROJECTED 800 CLIPPINGS FOR THE PERIOD JANUARY THROUGH JUNE 1974 AND AN ESTIMATED 2,500 CLIPPINGS FOR CALENDAR YEAR 1974 WOULD SATISFY THE NEEDS OF USERS. IT IS REPORTED THAT THIS DRASTIC REDUCTION IS DUE TO THE FACT THAT USING OFFICES OF THE PUBLIC HEALTH SERVICE (PHS) NOW OBTAIN THEIR REQUIREMENTS UNDER A CONTRACT AWARDED BY THE OFFICE OF CENTRAL SERVICES OF PHS. VIEW OF THE MAGNITUDE OF THIS DOWNWARD REVISION, THE PROCUREMENT OFFICE CONSIDERED OTHER METHODS, ALTERNATIVE TO CONTRACTING, TO SATISFY CURRENT NEEDS OF USERS. IT WAS DETERMINED THAT THE PLACEMENT OF ORDERS UNDER AN EXISTING GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT WOULD ADEQUATELY MEET THE CURRENT NEEDS OF USERS. HAVING FOUND AN ADEQUATE MEANS OF SATISFYING THE CURRENT NEEDS OF USERS, THE PROCUREMENT OFFICE DETERMINED THAT IFB 27-74-HEW-OS SHOULD BE CANCELED WHICH WAS EFFECTED BY THE ISSUANCE OF AMENDMENT 2 TO THE INVITATION. BY LETTER DATED DECEMBER 5, 1973, ALL BIDDERS WERE NOTIFIED OF THE CANCELLATION OF THE IFB AND THAT THE REQUIREMENT FOR PRESS CLIPPING SERVICES WOULD BE FULFILLED UNDER AN EXISTING GSA FEDERAL SUPPLY SCHEDULE CONTRACT.

SINCE THE INVITATION IN QUESTION HAS BEEN CANCELED, THE PROTEST OF PRESS INTELLIGENCE CONCERNING WHETHER THE SPECIFICATIONS CONTAINED THEREIN ARE RESTRICTIVE IS ACADEMIC AND WILL NOT, THEREFORE, BE FURTHER CONSIDERED.

BY LETTER DATED DECEMBER 5, 1973, INTERNATIONAL PRESS CLIPPING BUREAU, INC. (INTERNATIONAL PRESS), PROTESTED THE CANCELLATION OF IFB 27-74-HEW-OS AND THE PROCUREMENT OF THE REQUIRED PRESS CLIPPING SERVICES UNDER AN EXISTING GSA CONTRACT, THE AWARD OF WHICH IT PROTESTED SEVERAL MONTHS AGO TO OUR OFFICE. OUR RECORDS INDICATE THAT THE GSA CONTRACT IN QUESTION WAS AWARDED TO PRESS INTELLIGENCE, INC., AND THAT IT WAS THE SUBJECT OF OUR DECISION OF JANUARY 15, 1974, B 179077. INTERNATIONAL PRESS CONTENDS THAT IF THE REQUIREMENTS OF HEW HAVE CHANGED, ALL BIDDERS SHOULD HAVE BEEN PERMITTED TO QUOTE ON THE NEW REQUIREMENTS. INTERNATIONAL PRESS MAINTAINS THAT HEW BY PROCURING THE NEW REQUIREMENTS FROM PRESS INTELLIGENCE UNDER AN EXISTING GSA CONTRACT RATHER THAN BY READVERTISEMENT HAS CREATED A MONOPOLISTIC SITUATION AND THAT THIS ACTION IS UNFAIR TO ALL OTHER BIDDERS.

IN A LETTER DATED DECEMBER 13, 1973, TO OUR OFFICE, BURRELLE'S PRESS CLIPPING SERVICE (BURRELLE) ALSO PROTESTED THE CANCELLATION OF IFB 27 74- HEW-OS AND THE PROCUREMENT OF THE REQUIRED PRESS CLIPPING SERVICES BY HEW FROM PRESS INTELLIGENCE UNDER AN EXISTING GSA CONTRACT. BURRELLE CONTENDS THAT HEW IS PAYING MORE FOR THE PRESS CLIPPING SERVICES UNDER THE GSA CONTRACT THAN IT IS PAYING FOR THESE SERVICES UNDER THE CONTRACT WITH BURRELLE.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ONE OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. 37 COMP. GEN. 760, 761 (1958). SEE, ALSO, 41 U.S.C. 253(B), AND THE INVITATION BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS. FURTHERMORE, FPR 1-2.208(A) SPECIFICALLY PROVIDES THAT AN INVITATION MAY BE CANCELED BEFORE OPENING OF BIDS WHEN IT IS CLEARLY IN THE PUBLIC INTEREST AND IT CITES AS AN EXAMPLE OF "PUBLIC INTEREST" A SITUATION "*** WHERE THERE IS NO LONGER A REQUIREMENT FOR THE *** SERVICE ***." THEREFORE, WHEN IT IS DETERMINED THAT AN INVITATION FOR BIDS CONTAINS A SPECIFICATION WHICH EITHER OVERSTATES, OR MAY REASONABLY BE CONSTRUED TO OVERSTATE, ITS MINIMUM NEEDS, THE BEST INTEREST OF THE GOVERNMENT REQUIRES THE CANCELLATION OF THE INVITATION.

BASED ON THE FOREGOING, AND SINCE THE AUTHORITY VESTED IN THE CONTRACTING OFFICER TO REJECT ALL BIDS IS EXTREMELY BROAD, OUR OFFICE HAS BEEN PRESENTED NO BASIS TO QUESTION THE ACTION TAKEN. THIS IS ESPECIALLY TRUE WHERE AS HERE THE GOVERNMENT'S MINIMUM NEEDS WERE OVERSTATED. SEE B- 178255, FEBRUARY 25, 1974.

IN ITS LETTER OF FEBRUARY 21, 1974, TO OUR OFFICE, IN WHICH IT OBJECTS TO HEW SATISFYING ITS NEEDS FOR PRESS CLIPPING SERVICES UNDER THE EXISTING GSA CONTRACT WITH PRESS INTELLIGENCE, BURRELLE QUESTIONS THE PROPRIETY OF SUCH ACTION ON THE GROUND THAT UNDER THE GSA CONTRACT, PRESS INTELLIGENCE IS NOT REQUIRED TO FULFILL THE ORDERS PLACED BY HEW SINCE IT IS NOT ONE OF THE AGENCIES ENUMERATED IN THE CONTRACT. BURRELLE MAINTAINS THAT PRESS INTELLIGENCE CAN CHARGE AGENCIES NOT LISTED IN THE CONTRACT ANY RATE IT WISHES. AS AN EXAMPLE, BURRELLE CITED AS AN INSTANCE THE SITUATION WHERE THE DEPARTMENT OF DEFENSE WAS ALLEGEDLY PAYING PRESS INTELLIGENCE $40 PER MONTH PLUS $0.20 PER CLIPPING, EVEN THOUGH PRESS INTELLIGENCE HAD THE GSA CONTRACT CONCURRENTLY AT $25 PER MONTH PLUS $0.18 PER CLIPPING.

THE GSA CONTRACT IN QUESTION WAS AWARDED UNDER INVITATION FOR BIDS (IFB) NO. 3FP-A6-R-3529-6-6-73, ISSUED BY THE FEDERAL SUPPLY SERVICE. THE SCHEDULE FOR THE IFB PROVIDES ON PAGE 4 THEREOF UNDER "SCOPE OF CONTRACT" THAT THE CONTRACT WILL BE USED AS THE "PRIMARY SOURCE" FOR PRESS CLIPPING SERVICES BY GSA, U. S. COMMISSION ON CIVIL RIGHTS, NATIONAL SCIENCE FOUNDATION, BUREAU OF INDIAN AFFAIRS UNDER THE DEPARTMENT OF THE INTERIOR, FORT GEORGE MEADE FIRST ARMY AREA, AND SMITHSONIAN INSTITUTION. ON PAGE 5 OF THE SCHEDULE IT IS STATED THAT ACTIVITIES, OTHER THAN THOSE NAMED ABOVE, MAY PLACE ORDERS UNDER THE CONTRACT AND THAT CONTRACTORS ARE ENCOURAGED TO HONOR SUCH ORDERS WITHIN THE EXCEPTIONS MENTIONED IN THE "SCOPE OF CONTRACT." WHILE IT IS TRUE, AS ALLEGED BY BURRELLE, THAT PRESS INTELLIGENCE IS NOT REQUIRED UNDER THE SUBJECT GSA CONTRACT TO HONOR ORDERS PLACED BY HEW, IT IS OUR VIEW THAT PRESS INTELLIGENCE MAY VOLUNTARILY HONOR AN ORDER PLACED BY HEW UNDER THE GSA CONTRACT IN QUESTION IN WHICH EVENT IT CAN CHARGE FOR THE SERVICES COVERED BY THAT ORDER ONLY AT THE RATES PRESCRIBED IN THE GSA CONTRACT. ON THE OTHER HAND, THERE IS NOTHING TO PREVENT PRESS INTELLIGENCE FROM CONTRACTING WITH OTHER AGENCIES, SUCH AS THE DEFENSE DEPARTMENT, NOT COVERED BY THE GSA CONTRACT AT SUCH RATES AS MAY BE AGREED UPON.

IN A MEMORANDUM DATED MAY 2, 1974, TO OUR OFFICE, THE CHIEF, PROCUREMENT AND CONTRACTS SECTION, HEW, STATES THAT HE FELT THAT UNTIL NEW SPECIFICATIONS REFLECTING THE MINIMUM NEEDS OF HEW COULD BE PREPARED, IT WOULD BE PROPER FOR HIS AGENCY TO USE THE GSA CONTRACT. WE BELIEVE THAT SINCE HEW'S CURRENT NEEDS FOR PRESS CLIPPING SERVICES HAD TO BE SATISFIED, IT WAS PROPER FOR HEW TO USE THE GSA CONTRACT FOR PRESS CLIPPING SERVICES WHILE IT WAS IN THE PROCESS OF PREPARING SPECIFICATIONS WHICH WOULD REFLECT HEW'S ACTUAL MINIMUM NEEDS. IT IS OUR OPINION THAT THE ACTION OF HEW IN PROCURING ITS CURRENT NEEDS FOR PRESS CLIPPING SERVICES UNDER AN EXISTING GSA CONTRACT WAS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. WE HAVE BEEN ADVISED INFORMALLY THAT A NEW INVITATION FOR PRESS CLIPPING SERVICES WILL BE ISSUED BY HEW IN THE IMMEDIATE FUTURE. THEREFORE, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEPARTMENT.

ACCORDINGLY, THE PROTESTS OF INTERNATIONAL PRESS CLIPPING AND BURRELLE ARE DENIED.