B-180989, OCT 8, 1974

B-180989: Oct 8, 1974

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WHERE IFB WAS ISSUED AND SUBSEQUENT TO BID OPENING ADDITIONAL REQUIREMENT FOR ITEM WAS RECEIVED. PROTESTER'S CONTENTION THAT ORIGINAL IFB SHOULD HAVE BEEN CANCELED AND ENTIRE QUANTITY RESOLICITED UNDER NEW IFB IS REJECTED SINCE ASPR 2-404.1(A) STATES THAT AFTER BID OPENING. THE PLESSEY CONTRACT WAS AWARDED PURSUANT TO AN INVITATION ISSUED AFTER THE OPENING OF THE FIRST INVITATION AND COVERED NEWLY INCREASED REQUIREMENTS FOR THE ITEMS. HAS QUESTIONED THE AWARD TO PLESSEY ON THE BASIS THAT THE CONTRACT WAS MADE WITH THE INTENT OF EXERCISING THE OPTION QUANTITY AND THEREBY INCREASING THE TOTAL QUANTITY PROCURED WITHOUT THE BENEFIT OF COMPETITIVE BIDDING ON THE LARGER QUANTITY. ASTRO CONTENDS THAT COMPETITIVE BIDDING ON THE BASIS OF THE GOVERNMENT'S TOTAL REQUIREMENTS WOULD HAVE RESULTED IN ADDITIONAL SAVINGS TO THE GOVERNMENT.

B-180989, OCT 8, 1974

WHERE IFB WAS ISSUED AND SUBSEQUENT TO BID OPENING ADDITIONAL REQUIREMENT FOR ITEM WAS RECEIVED, PROTESTER'S CONTENTION THAT ORIGINAL IFB SHOULD HAVE BEEN CANCELED AND ENTIRE QUANTITY RESOLICITED UNDER NEW IFB IS REJECTED SINCE ASPR 2-404.1(A) STATES THAT AFTER BID OPENING, AN IFB SHOULD NOT BE CANCELED AND READVERTISED DUE SOLELY TO INCREASED REQUIREMENTS FOR THE ITEMS BEING PROCURED.

ASTRO DEVELOPMENT LABORATORIES:

IN THIS CASE THE ARMY CANCELED AN INVITATION FOR BIDS (HEREINAFTER THE FIRST INVITATION) AFTER BID OPENING AND SATISFIED ITS REQUIREMENTS AT A LOWER PRICE BY EXERCISING AN OPTION AVAILABLE UNDER A CONTRACT AWARDED TO PLESSEY CONNECTOR DIVISION, INC. THE PLESSEY CONTRACT WAS AWARDED PURSUANT TO AN INVITATION ISSUED AFTER THE OPENING OF THE FIRST INVITATION AND COVERED NEWLY INCREASED REQUIREMENTS FOR THE ITEMS.

ASTRO DEVELOPMENT LABORATORIES, THE LOW BIDDER UNDER THE FIRST INVITATION, HAS QUESTIONED THE AWARD TO PLESSEY ON THE BASIS THAT THE CONTRACT WAS MADE WITH THE INTENT OF EXERCISING THE OPTION QUANTITY AND THEREBY INCREASING THE TOTAL QUANTITY PROCURED WITHOUT THE BENEFIT OF COMPETITIVE BIDDING ON THE LARGER QUANTITY. ASTRO CONTENDS THAT COMPETITIVE BIDDING ON THE BASIS OF THE GOVERNMENT'S TOTAL REQUIREMENTS WOULD HAVE RESULTED IN ADDITIONAL SAVINGS TO THE GOVERNMENT.

FOR THE REASONS STATED BELOW WE DENY THE PROTEST.

UNDER THE FIRST INVITATION THE ARMY SOLICITED BIDS FOR A QUANTITY OF 2763 "M53" INITIATORS AND A QUANTITY OF 1855 "M99" INITIATORS. ASTRO WAS LOW BIDDER AND PLESSEY WAS THIRD LOW BIDDER ON BOTH ITEMS. HOWEVER, AN IMMEDIATE AWARD WAS NOT MADE TO ASTRO DUE TO A QUESTION CONCERNING WHETHER TO PERMIT CORRECTION OF A MISTAKE IN ASTRO'S BID. THE ARMY FINALLY DETERMINED TO PERMIT CORRECTION BY AN UPWARD REVISION OF ASTRO'S BID. SUBSEQUENTLY, THE CONTRACTING OFFICER DETERMINED THAT ASTRO WAS NONRESPONSIBLE BIDDER AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). A COC WAS EVENTUALLY ISSUED TO ASTRO.

AFTER BIDS HAD BEEN OPENED UNDER THE FIRST INVITATION THE PROCURING ACTIVITY WAS APPRISED OF AN ADDITIONAL REQUIREMENT FOR THESE ITEMS. INVITATION FOR BIDS (SECOND INVITATION) WAS THEN ISSUED TO PROCURE A QUANTITY OF 7177 "M53" INITIATORS AND A QUANTITY OF 5916 "M99" INITIATORS, WHICH REPRESENTED THE ADDITIONAL QUANTITY REQUIRED. AWARD WAS MADE TO THE LOW BIDDER, PLESSEY. THE CONTRACT RESERVED THE RIGHT TO EXERCISE AN OPTION TO PURCHASE ADDITIONAL QUANTITIES AMOUNTING TO 50 PERCENT OF THE QUANTITY ORIGINALLY AWARDED.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER DETERMINED THAT A SUBSTANTIAL SAVINGS IN THE AMOUNT OF $25,991.62 COULD BE EFFECTED BY EXERCISING THE AVAILABLE CONTRACT OPTION TO SATISFY THE REQUIREMENTS OF THE FIRST INVITATION. THEREFORE THE CONTRACTING OFFICER CANCELED THE FIRST INVITATION IN ITS ENTIRETY AND EXERCISED THE GOVERNMENT'S OPTION RIGHTS UNDER THE PLESSEY CONTRACT.

IN RESPONSE TO PROTESTER'S CONTENTION THAT THE REQUIREMENTS ADVERTISED IN THE FIRST INVITATION SHOULD HAVE BEEN ADVERTISED TOGETHER WITH THE REQUIREMENTS OF THE SECOND INVITATION SO AS TO ENCOURAGE A STILL LOWER BID FOR THE LARGER COMBINED QUANTITY, THE CONTRACTING OFFICER REPORTS THAT THE REQUIREMENTS OF THE SECOND INVITATION WERE RECEIVED AFTER BID OPENING OF THE FIRST INVITATION AND THERE WAS NO ASSURANCE THAT A LOWER PRICE COULD HAVE BEEN OBTAINED BY CANCELLATION OF THE FIRST INVITATION AT THE TIME THE SECOND WAS ISSUED. THE CONTRACTING OFFICER FURTHER NOTES THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1(A) PROVIDES THAT:

"*** AS A GENERAL RULE, AFTER OPENING, AN INVITATION FOR BIDS SHOULD NOT BE CANCELED AND READVERTISED DUE SOLELY TO INCREASED REQUIREMENTS FOR THE SAME ITEMS BEING PROCURED; AWARD SHOULD BE MADE ON THE INITIAL INVITATION FOR BIDS AND THE ADDITIONAL QUANTITY REQUIRED SHOULD BE TREATED AS A NEW PROCUREMENT."

IN THE ABOVE CIRCUMSTANCES, WE AGREE WITH THE ARMY THAT THE PROPER COURSE FOR THE CONTRACTING OFFICER, IN ACCORDANCE WITH THE DIRECTION IN ASPR 2- 404.1 WAS TO TREAT THE ADDITIONAL QUANTITY AS THE SUBJECT OF A NEW PROCUREMENT. MOREOVER, ONCE BIDS WERE OPENED ON THE SECOND INVITATION THE CONTRACTING OFFICER WAS SIMILARLY REQUIRED UNDER THE ABOVE REGULATION NOT TO CANCEL AND READVERTISE THE SECOND INVITATION BUT TO MAKE AWARD UNDER THAT INVITATION FOR THE REQUIREMENTS FOR WHICH IT WAS ISSUED. 36 COMP. GEN. 62 (1956). MOREOVER, THE RECORD SHOWS THAT AT THE TIME AWARD WAS MADE UNDER THE SECOND INVITATION NO AWARD HAD BEEN MADE YET UNDER THE SECOND INVITATION NO AWARD HAD BEEN MADE YET UNDER THE FIRST INVITATION DUE TO DELAY RESULTING FROM ASTRO'S REQUEST FOR BID CORRECTION AND THEREAFTER FROM THE CONSIDERATION OF ASTRO'S RESPONSIBILITY TO PERFORM THE CONTRACT. FINALLY, THE FIRST INVITATION THEN WAS CANCELED BY THE AGENCY BECAUSE OF THE SUBSTANTIAL SAVINGS WHICH COULD BE REALIZED BY EXERCISING THE EXISTING CONTRACT OPTION. BASED ON THE RECORD WE FIND NO REASON TO OBJECT TO THE AGENCY'S ACTIONS.

ACCORDINGLY, THE PROTEST IS DENIED.