B-182858, APR 22, 1975

B-182858: Apr 22, 1975

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FAILURE TO SYNOPSIZE PROCUREMENT IN COMMERCE BUSINESS DAILY DOES NOT PROVIDE LEGAL BASIS FOR DISTURBING AWARD UNLESS SUFFICIENT COMPETITION HAS NOT BEEN GENERATED OR THERE IS PROOF THAT FAILURE TO SYNOPSIZE WAS PURPOSELY MEANT TO PRECLUDE PROSPECTIVE CONTRACTOR FROM BIDDING. 2.FAILURE TO SOLICIT INCUMBENT CONTRACTOR DOES NOT REQUIRE RESOLICITATION OF BIDS WHEN COMPETITION FOR PROCUREMENT WAS ADEQUATE. REASONABLE PRICES WERE OBTAINED AND RECORD DISCLOSES NO INTENT TO PRECLUDE INCUMBENT FROM BIDDING. GS-07B-20151 WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). THE PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS AND THE SMALL BUSINESS RESTRICTED ADVERTISING METHOD WAS EMPLOYED. FOUR BIDS WERE RECEIVED PRIOR TO THE BID OPENING.

B-182858, APR 22, 1975

1. FAILURE TO SYNOPSIZE PROCUREMENT IN COMMERCE BUSINESS DAILY DOES NOT PROVIDE LEGAL BASIS FOR DISTURBING AWARD UNLESS SUFFICIENT COMPETITION HAS NOT BEEN GENERATED OR THERE IS PROOF THAT FAILURE TO SYNOPSIZE WAS PURPOSELY MEANT TO PRECLUDE PROSPECTIVE CONTRACTOR FROM BIDDING. 2.FAILURE TO SOLICIT INCUMBENT CONTRACTOR DOES NOT REQUIRE RESOLICITATION OF BIDS WHEN COMPETITION FOR PROCUREMENT WAS ADEQUATE, REASONABLE PRICES WERE OBTAINED AND RECORD DISCLOSES NO INTENT TO PRECLUDE INCUMBENT FROM BIDDING.

COASTAL SERVICES, INC.:

ON NOVEMBER 15, 1974, SOLICITATION NO. GS-07B-20151 WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FOR JANITORIAL SERVICES AT THE FEDERAL OFFICE BUILDING, 600 SOUTH STREET, NEW ORLEANS, LOUISIANA, FOR A 1 -YEAR PERIOD. THE PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS AND THE SMALL BUSINESS RESTRICTED ADVERTISING METHOD WAS EMPLOYED. FOUR BIDS WERE RECEIVED PRIOR TO THE BID OPENING, HELD ON DECEMBER 5, 1974. AWARD WAS MADE TO THE LOW BIDDER, J & J MAINTENANCE, INC., ON DECEMBER 6, 1974, IN THE AMOUNT OF $107,868.

COASTAL SERVICES, INC. (COASTAL), HAS PROTESTED THIS AWARD CONTENDING THAT IT WAS DENIED AN OPPORTUNITY TO COMPETE FOR THE AWARD EVEN THOUGH IT WAS ON GSA'S BIDDERS MAILING LIST. COASTAL STATES THAT IT WOULD HAVE BEEN THE SUCCESSFUL LOW BIDDER UNDER THE SOLICITATION HAD IT HAD THE OPPORTUNITY TO SUBMIT ITS INTENDED PRICE OF $107,434.50, WHICH WAS ITS BID PRICE FOR PROVIDING JANITORIAL SERVICES AT THE SAME BUILDING UNDER THE SOLICITATION FOR THE PREVIOUS YEAR.

GSA HAS STATED THAT THE SOLICITATION WAS MAILED TO A TOTAL OF 55 FIRMS. FORTY-TWO OF THOSE FIRMS HAD INDICATED THAT THEY WISHED TO RECEIVE ALL SOLICITATIONS FOR JANITORIAL SERVICES ISSUED BY GSA'S FORT WORTH, TEXAS, REGIONAL OFFICE, WHICH IS RESPONSIBLE FOR THE GEOGRAPHICAL AREA COMPRISED OF THE STATES OF ARKANSAS, LOUISIANA, NEW MEXICO, OKLAHOMA AND TEXAS. THOSE 42 FIRMS ARE ON WHAT GSA TERMS AN "AUTOMATIC" MAILING LIST AND ROUTINELY RECEIVE ALL SOLICITATIONS. IN ADDITION TO THE AUTOMATIC LIST, THERE ARE ALSO MAINTAINED "MANUAL" LISTS OF THOSE FIRMS WHO WISH TO RECEIVE SOLICITATIONS FOR JANITORIAL SERVICES IN PARTICULAR AREAS OR LOCATIONS. THE LIST FOR NEW ORLEANS CONTAINED 32 NAMES, INCLUDING THAT OF COASTAL.

GSA, HOWEVER, DID NOT SOLICIT BIDS FROM ALL OF THE FIRMS ON THE "MANUAL" LIST FOR THE NEW ORLEANS AREA. THE CONTRACTING OFFICER, RELYING UPON FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.205-4(B) (1964 ED. AMEND. 10), ENTITLED "ROTATION OF LISTS," MADE THE DECISION TO ROTATE THE MANUAL LIST WHICH WAS DONE BY SOLICITING THE 11 FIRMS WHICH APPEARED IN THE LEFT- HAND COLUMN OF THE MANUAL LIST. ADDITIONALLY, CUSTOM MAINTENANCE COMPANY, WHICH WAS ADDED TO THE MANUAL LIST SINCE THE LAST PROCUREMENT AND RAMELLI BUILDING MAINTENANCE, WHICH HAD INDICATED ITS DESIRE TO BE PLACED ON THE NEW ORLEANS AREA LIST BUT HAD NOT THEN BEEN ADDED TO IT, WERE SOLICITED. A THIRD FIRM, AQUARIUS JANITORIAL SERVICE, WHICH HAD BEEN ADDED TO THE MANUAL LIST SINCE THE LAST PROCUREMENT, WAS INADVERTENTLY NOT SOLICITED.

FPR SEC. 1-2.205-4(B) AUTHORIZES THE ROTATION OF BIDDERS MAILING LISTS WHEN THE NUMBER OF BIDDERS ON THE LISTS ARE CONSIDERED EXCESSIVE IN RELATION TO A SPECIFIC PROCUREMENT. GSA, AS A RESULT OF THIS PROTEST, RECOGNIZES THAT WHILE NOT PROSCRIBED BY FRP SEC. 1-2.205-4(B), THE METHOD OF ROTATION UTILIZED BY ITS FORT WORTH REGIONAL OFFICE IS INHERENTLY UNFAIR TO BIDDERS INTERESTED ONLY IN WORK TO BE PERFORMED IN THE NEW ORLEANS AREA. ACCORDINGLY, GSA HAS ADVISED ITS REGIONAL OFFICE TO DISCONTINUE THIS MANNER OF ROTATION IN FUTURE PROCUREMENTS. ALSO, WE ARE BY LETTER OF TODAY ALERTING GSA THAT FPR SEC. 1-2.205-4(B) PROVIDES THAT "WHENEVER THE ROTATION METHOD IS EMPLOYED, THE SUCCESSFUL BIDDER ON THE PREVIOUS PROCUREMENT FOR THE SAME OR SIMILAR ITEMS *** SHALL BE SOLICITED."

IN VIEW OF THE QUOTED PROVISION, WE ARE OF THE OPINION THAT SINCE COASTAL WAS THE INCUMBENT CONTRACTOR FOR THE SERVICES IN THE IMMEDIATE SOLICITATION, GSA SHOULD HAVE SEND IT A COPY OF THE SOLICITATION AND THE FAILURE TO DO SO WAS IMPROPER. HOWEVER, IN DETERMINING THE PROPRIETY OF THE ENSUING AWARD, WE NOTE THAT, ALTHOUGH COASTAL CONTENDS THAT IT WAS DELIBERATELY EXCLUDED FROM PARTICIPATION IN THE SOLICITATION BECASE OF DIFFERENCES IT HAD WITH GSA OVER PRIOR CONTRACT PERFORMANCE, THERE IS NO EVIDENCE IN THE RECORD INDICATING A CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE COASTAL FROM BIDDING BECAUSE OF PAST PROBLEMS. GSA STATES THAT "A SOLICITATION WOULD HAVE BEEN FURNISHED TO ANY FIRM REQUESTING IT AND A BID FROM ANY SUCH FIRM WOULD HAVE BEEN CONSIDERED." FURTHER, THE SOLICITATION WAS POSTED ON BULLETIN BOARDS IN THE NEW ORLEANS GSA OFFICES AND THE BUSINESS SERVICE CENTERS. WHILE IT WAS INTENDED THAT THE PROCUREMENT BE PUBLICIZED IN THE COMMERCE BUSINESS DAILY AS REQUIRED BY FPR SEC. 1-1.1003 (1964 ED. AMEND. 68), THE SYNOPSIS OF THE PROCUREMENT NEVER APPEARED THROUGH AN ADMINISTRATIVE ERROR. IN THIS REGARD, OUR OFFICE HAS HELD THAT THE FAILURE TO SYNOPSIZE A PROCUREMENT IN THE COMMERCE BUSINESS DAILY DOES NOT PROVIDE A LEGAL BASIS FOR DISTURBING AN AWARD, UNLESS SUFFICIENT COMPETITION HAS NOT BEEN GENERATED OR THERE IS PROOF THAT THE FAILURE TO SYNOPSIZE WAS PURPOSEFULLY MEANT TO PRECLUDE A PROSPECTIVE CONTRACTOR FROM BIDDING. IN THE INSTANT SITUATION, IT APPEARS FROM THE RECORD THAT ADEQUATE COMPETITION WAS OBTAINED AND THE FAILURE TO SYNOPSIZE WAS ENTIRELY INADVERTENT. ACCORDINGLY, NO CORRECTIVE ACTION IS REQUIRED. 170542, DECEMBER 31, 1970; B-168753, MARCH 25, 1970. MOREOVER, WHEN THERE HAS BEEN ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED FOR A PROCUREMENT AND THE RECORD DISCLOSES NO INTENT TO PRECLUDE THE INCUMBENT CONTRACTOR FROM BIDDING, OUR OFFICE HAS HELD THAT THE FAILURE OF THE INCUMBENT TO RECEIVE THE SOLICITATION DOES NOT REQUIRE A READVERTISEMENT OF BIDS. B-177685, MARCH 5, 1973; B 168220, NOVEMBER 12, 1969; B-167367, AUGUST 26, 1969.

WHILE IT IS UNFORTUNATE THAT COASTAL DID NOT RECEIVE A SOLICITATION FOR THIS PROCUREMENT, IN VIEW OF THE FOREGOING WE ARE UNABLE TO CONCLUDE THAT THE AWARD WHICH WAS MADE WAS RENDERED LEGALLY DEFECTIVE BY THE OMISSION.

ACCORDINGLY, THE PROTEST OF COASTAL IS DENIED.