B-182913, OCT 3, 1975

B-182913: Oct 3, 1975

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PROTEST MADE AGAINST THIS ACTION ONLY AFTER BID OPENING ON NEW PROCUREMENT IS UNTIMELY AND NOT FOR CONSIDERATION. 2. PROTEST AGAINST ANY MATTER REGARDING SPECIFIC FORM IN WHICH INVITATION WAS DRAWN. WAS ALSO UNTIMELY UNDER 4 C.F.R. NOTHING IN RECORD INDICATES DETERMINATION OF REASONABLENESS TO HAVE BEEN ARBITRARY. A&E BELIEVES THE PROPER COURSE OF ACTION SHOULD HAVE BEEN THE EXERCISE BY THE PROCUREMENT ACTIVITY OF THE ENTIRE 1- YEAR OPTION FOR THE SAME SERVICES AVAILABLE TO IT UNDER A&E'S CONTRACT NO. 3-36978. THE FIRST ISSUE REQUIRING CONSIDERATION IS THAT REGARDING THE TIMELINESS OF THE PROTEST. IT IS THE POSITION OF THE PROCUREMENT ACTIVITY THAT WHEN A&E WAS ADVISED BY TELEGRAM. WAS THE PROPER TIME FOR A&E TO HAVE FILED ITS PROTEST.

B-182913, OCT 3, 1975

1. WHERE CONTRACTING ACTIVITY ADVISED CONTRACTOR THAT OPTION IN ITS CONTRACT WOULD NOT BE EXERCISED, THAT REQUIREMENTS WOULD BE CHANGED, AND THAT NEW REQUIREMENT WOULD BE SOLICITED BY FORMAL ADVERTISING, PROTEST MADE AGAINST THIS ACTION ONLY AFTER BID OPENING ON NEW PROCUREMENT IS UNTIMELY AND NOT FOR CONSIDERATION. 2. PROTEST AGAINST ANY MATTER REGARDING SPECIFIC FORM IN WHICH INVITATION WAS DRAWN, SUCH MATTER BEING APPARENT ON FACE OF INVITATION, WAS ALSO UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) AS FILED AFTER BID OPENING. 3. FUNCTION OF DETERMINING REASONABLENESS OF BID PRICES PROPERLY RESTS WITH CONTRACTING ACTIVITY, AND NOTHING IN RECORD INDICATES DETERMINATION OF REASONABLENESS TO HAVE BEEN ARBITRARY, CAPRICIOUS, OR MADE IN BAD FAITH.

A&E BLUEPRINTERS, INC. OF MARYLAND:

A&E BLUEPRINTERS, INC. OF MARYLAND (A&E) PROTESTS THE AWARD TO ANOTHER FIRM BY THE UNITED STATES DEPARTMENT OF COMMERCE OF A REQUIREMENTS CONTRACT FOR THE PRINTING OF INITIAL AND REPLENISHMENT PATENT COPIES AND FOR THEIR WORLDWIDE DISTRIBUTION UNDER INVITATION FOR BIDS NO. 5-36988, OPENED ON DECEMBER 20, 1974. A&E BELIEVES THE PROPER COURSE OF ACTION SHOULD HAVE BEEN THE EXERCISE BY THE PROCUREMENT ACTIVITY OF THE ENTIRE 1- YEAR OPTION FOR THE SAME SERVICES AVAILABLE TO IT UNDER A&E'S CONTRACT NO. 3-36978.

THE FIRST ISSUE REQUIRING CONSIDERATION IS THAT REGARDING THE TIMELINESS OF THE PROTEST. IT IS THE POSITION OF THE PROCUREMENT ACTIVITY THAT WHEN A&E WAS ADVISED BY TELEGRAM, DATED SEPTEMBER 3, 1974, OF THE INTENTION TO EXTEND THE A&E CONTRACT FOR 3 MONTHS INSTEAD OF EXERCISING THE 1-YEAR OPTION IN ITS CONTRACT AND TO ISSUE A NEW SOLICITATION FOR THE SERVICES (PLUS ADDITIONAL NEEDS), THEN AND NOT DECEMBER 27, 1974 (DATE RECEIVED AT GAO), WAS THE PROPER TIME FOR A&E TO HAVE FILED ITS PROTEST. THE ACTIVITY NOTES THAT OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS THEN IN EFFECT PROVIDED AT 4 C.F.R. SEC. 20.2(A) (1974) THAT PROTESTS MUST BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR THE PROTEST IS, OR SHOULD HAVE BEEN, KNOWN. SINCE A&E DID NOT PROTEST UNTIL DECEMBER 27, CLEARLY MORE THAN 5 DAYS AFTER IT WAS APPRISED OF THE AFOREMENTIONED INFORMATION, IT IS BELIEVED THAT THE A&E PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION. IS ALSO NOTED THAT IN AGREEING TO THE EXTENSIONS OF ITS CONTRACT A&E ACQUIESCED TO THE FACT THAT THE EXTENSIONS WERE MADE "IN LIEU OF" THE OPTION PERIOD.

SINCE A&E WAS ADVISED BY THE CONTRACTING ACTIVITY ON SEPTEMBER 3, 1974, THAT THE OPTION WAS NOT TO BE EXERCISED BECAUSE THE ACTIVITY WAS CHANGING ITS REQUIREMENTS (THE QUALITY ASSURANCE REQUIREMENTS WERE EXPANDED THEREBY MAKING ANY RESULTANT CONTRACT MORE COSTLY), AND THAT THE CONTRACTING ACTIVITY WAS GOING TO ISSUE A NEW INVITATION FOR THESE REQUIREMENTS, A&E SHOULD HAVE PROTESTED THIS ACTION PRIOR TO BID OPENING. AS IT DID NOT SO PROTEST, WE MUST CONSIDER THAT PORTION OF ITS PROTEST TO BE UNTIMELY AND NOT FOR CONSIDERATION.

WE ALSO BELIEVE THE CONTRACTING ACTIVITY IS CORRECT AS REGARDS THE A&E PROTEST AGAINST EXTENDING TO 200 MILES THE RADIUS WITHIN WHICH ANY BIDDER WOULD NEED BE LOCATED IN ORDER TO BE CONSIDERED FOR AWARD AND AGAINST THE SPECIFIC FORM IN WHICH THE QUALITY ASSURANCE REQUIREMENTS WERE INCORPORATED INTO THE INVITATION. IT IS CLEAR THAT A PROTEST CONCERNING THESE MATTERS SHOULD HAVE BEEN FILED PRIOR TO BID OPENING AS EACH DEALT WITH ITEMS APPARENT ON THE FACE OF THE INVITATION.

A&E ALSO PROTESTS, IN ESSENCE, THE REASONABLENESS OF THE LOW BID RECEIVED UNDER THE INVITATION. IT IS ALLEGED THAT THE EXERCISE OF THE A&E OPTION WOULD RESULT IN SAVINGS TO THE GOVERNMENT OF $172,000 OVER A 1-YEAR PERIOD AND APPROXIMATELY $115,659.50 OVER AN 8-MONTH PERIOD, IF THE TOTAL 4-MONTH EXTENSION IS CONSIDERED AS PART OF THE YEAR OPTION. WE BELIEVE THAT THE PROTEST OF THIS ISSUE WAS TIMELY MADE SINCE IT DID NOT, OBVIOUSLY, ARISE UNTIL BID OPENING DISCLOSED THE AMOUNT OF THE LOW BID. INASMUCH AS IT IS PROVIDED AT 4 C.F.R. SEC. 20.12 THAT "DAYS," AS REGARDS THE TIMELY SUBMISSION OF A PROTEST, SHALL MEAN "WORKING DAYS" AND INASMUCH AS THE A&E PROTEST WAS RECEIVED BY OUR OFFICE ON DECEMBER 27, WHICH WAS WITHIN 5 WORKING DAYS OF THE DECEMBER 20 BID OPENING, THE PROTEST OF THIS ISSUE MUST BE CONSIDERED.

THE TWO BIDS OPENED WERE AS FOLLOWS:

FIRST YEAR OPTION YEAR TOTAL

INTERNATIONAL COMPUTAPRINT $1,698,121.59 $1,783,446.28 $3,481,567.87

CORPORATION (ICC)

A&E 1,954,491.80 2,159,957.10 4,114,448.90

AWARD WAS MADE TO ICC ON JANUARY 10, 1975.

NOTWITHSTANDING THE TIMELINESS OF THE PROTEST OF THIS ISSUE, WE DO NOT BELIEVE THAT THE A&E CONTENTION REGARDING THE ICC PRICE IS TENABLE. FIRST, THE CONTRACTING ACTIVITY, IN EFFECT, DETERMINED THE PRICE TO BE REASONABLE BY MAKING THE AWARD TO ICC. GENERALLY, WHETHER A BID IS REASONABLE AS TO PRICE IS A DETERMINATION TO BE MADE BY THE CONTRACTING ACTIVITY. OUR OFFICE WILL NOT INTERFERE WITH SUCH DETERMINATION ABSENT A SHOWING THAT IT WAS ARRIVED AT ARBITRARILY, CAPRICIOUSLY, OR OTHERWISE MADE IN BAD FAITH. B-177476, MAY 14, 1973. THERE HAS BEEN NO SUCH SHOWING HERE. SECONDLY, IT WOULD SEEM THAT A&E HAD A FAIRLY SUBSTANTIAL INTEREST IN RETAINING ITS CONTRACT BY SUBMITTING A COMPETITIVE BID. ANY EVENT, DUE TO THE INFLATIONARY TREND NOW PRESENT IN THE ECONOMY AND THE INCREASED REQUIREMENTS OF THE PROCUREMENT, WE DO NOT BELIEVE THAT A COMPARISON OF THE AWARD PRICE WITH EITHER THE OPTION PRICE OR THE A&E BID PRICE LEADS TO THE CONCLUSION THAT THE AWARD PRICE WAS NECESSARILY UNREASONABLE.

CONCERNING A&E'S OBSERVATION THAT FAILURE OF A&E TO RECEIVE AWARD MIGHT RESULT IN THE LAYING OFF OF MINORITY FEMALE EMPLOYEES, WHILE UNFORTUNATE, THIS FACTOR COULD NOT PROPERLY HAVE BEEN USED AS A FACTOR IN DETERMINING CONTRACT AWARD.

CONSEQUENTLY, THE PROTEST IS DENIED.