B-188627(2), OCT 10, 1978

B-188627(2): Oct 10, 1978

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BY DECISION TODAY (COPY ENCLOSED) WE HAVE DENIED THE PROTEST. THESE TESTS WERE APPLIED AS A PREREQUISITE TO AWARD AGAINST ALL OTHER BIDDERS FOR THE COURT'S REQUIREMENT AS WELL AS TO SIMILAR REQUIREMENTS FOR THE NARCOTICS TREATMENT ADMINISTRATION (NTA). WHILE NO CONTRACTS HAVE BEEN AWARDED UNDER THE FORMAL SOLICITATIONS FOR THE COURT'S NEEDS. THE FACT THAT IT WAS THE SOLE BIDDER UNDER THE SOLICITATION IN PROTEST. WE WOULD EXPECT THE DISTRICT TO TAKE SUCH STEPS AS ARE "CONSISTENT WITH ENSURING THAT THE INTERESTS OF THE DISTRICT OF COLUMBIA ARE PROTECTED" IN ACCORDANCE WITH D.C. WE HAVE BEEN INFORMALLY ADVISED BY DISTRICT PERSONNEL THAT THE DISTRICT INTENDS TO CANCEL THE PRESENT INVITATION (THE THIRD FOR THE SAME REQUIREMENT) AND READVERTISE THE REQUIREMENT FOR THE FOURTH TIME.

B-188627(2), OCT 10, 1978

PRECIS-UNAVAILABLE

THE HONORABLE WALTER E. WASHINGTON MAYOR OF THE DISTRICT OF COLUMBIA:

WE REFER TO THE LATEST IN A SERIES OF PROTESTS BY PRECISION ANALYTICAL LABORATORIES, INC., INVOLVING SOLICITATIONS FOR DRUG DETECTION URINALYSIS SERVICES FOR THE DISTRICT GOVERNMENT. THE INSTANT PROTEST INVOLVES THE PROCUREMENT OF ONSITE LABORATORY SERVICES FOR THE DISTRICT OF COLUMBIA SUPERIOR COURT. BY DECISION TODAY (COPY ENCLOSED) WE HAVE DENIED THE PROTEST. ALTHOUGH WE FOUND NO LEGAL BASIS TO SUSTAIN THE PROTESTS, THE DISTRICT'S ACTIONS IN THIS PROCUREMENT DO APPEAR QUESTIONABLE.

SPECIFICALLY, THE DISTRICT HAS BEEN OBTAINING THESE SERVICES FOR THE COURT FOR THE PAST SEVERAL YEARS FROM B&W STAT LABORATORIES, INC., A BIRM WHICH SINCE 1976 HAS BEEN UNABLE TO SATISFACTORILY COMPLETE PREAWARD RESPONSIBILITY TESTS. THESE TESTS WERE APPLIED AS A PREREQUISITE TO AWARD AGAINST ALL OTHER BIDDERS FOR THE COURT'S REQUIREMENT AS WELL AS TO SIMILAR REQUIREMENTS FOR THE NARCOTICS TREATMENT ADMINISTRATION (NTA). THUS, WHILE NO CONTRACTS HAVE BEEN AWARDED UNDER THE FORMAL SOLICITATIONS FOR THE COURT'S NEEDS, B&W HAS NEVERTHELESS BEEN PERFORMING URINALYSIS TESTING SERVICES, FIRST THROUGH EXTENSIONS OF ITS ORIGINAL CONTRACT AND SUBSEQUENTLY THROUGH NON COMPETITIVE PURCHASE ORDERS ISSUED WITHOUT A REQUIREMENT FOR THE QUALIFYING TESTS.

PRECISION, ALTHOUGH SUCCESSFULLY PERFORMING THE NTA CONTRACTS, HAS BEEN EFFECTIVELY EXCLUDED FROM PARTICIPATING IN THE COURT CONTRACT, MOST RECENTLY BY THE DESIGNATION OF THAT CONTRACT AS A "SHELTERED MARKET" PROCUREMENT UNDER DC LAW 1-95, THE MINORITY BUSINESS CONTRACTING ACT. THE RESULT OF THE "SHELTERED MARKET" PROCUREMENT HAS BEEN TO LIMIT COMPETITION TO B&W AND ONE OTHER FIRM WHICH HAS NOT SEEN FIT TO BID.

IN THE FACE OF B&W'S CONTINUED INABILITY TO QUALIFY ITSELF, AND THE FACT THAT IT WAS THE SOLE BIDDER UNDER THE SOLICITATION IN PROTEST, WE WOULD EXPECT THE DISTRICT TO TAKE SUCH STEPS AS ARE "CONSISTENT WITH ENSURING THAT THE INTERESTS OF THE DISTRICT OF COLUMBIA ARE PROTECTED" IN ACCORDANCE WITH D.C. LAW 1-95 SEC. 4(A). INSTEAD, WE HAVE BEEN INFORMALLY ADVISED BY DISTRICT PERSONNEL THAT THE DISTRICT INTENDS TO CANCEL THE PRESENT INVITATION (THE THIRD FOR THE SAME REQUIREMENT) AND READVERTISE THE REQUIREMENT FOR THE FOURTH TIME, WHILE CONTINUING THE "SHELTERED MARKET" PROCUREMENT. THE DISTRICT ALSO ADVISES IT INTENDS TO REVISE THE SPECIFICATIONS TO MAKE THEM "MORE REALISTIC."

IN VIEW OF THE FACT THAT THE ONLY BIDDER UNDER THE RESTRICTED INVITATION HAS A LONG HISTORY OF BEING UNABLE TO QUALIFY ITSELF AS A RESPONSIBLE PROSPECTIVE CONTRACTOR, AND BECAUSE THERE EXISTS ONLY ONE OTHER ELIGIBLE BIDDER (WHOSE QUALIFICATIONS ARE UNKNOWN), WE QUESTION THE WISDOM OF THIS APPROACH. IT IS EMINENTLY CLEAR THAT WHAT IS NEEDED HERE IS MORE COMPETITION RATHER THAN A CONTINUATION OF THE SAME RESTRICTIONS. WE ALSO ARE CONCERNED AS TO WHY THE DISTRICT HAS NOW DECIDED TO REVISE THE SPECIFICATIONS AFTER APPLYING THE PRESENT SPECIFICATION REQUIREMENTS FOR SEVERAL YEARS TO ALL PROSPECTIVE BIDDERS. IN VIEW OF THE NATURE OF THE SERVICES, WE WOULD QUESTION ANY EASING OF THE SPECIFICATION REQUIREMENTS, SINCE THAT WOULD APPEAR TO BE INCONSISTENT WITH THE PURPOSES AND IMPORTANCE OF THE DRUG DETECTION PROGRAM.

ACCORDINGLY, WE ARE RECOMMENDING THAT WHEN THE PRESENT IFB IS CANCELED, CONSIDERATION BE GIVEN TO READVERTISING THE REQUIREMENT WITHOUT THE "SHELTERED MARKET" RESTRICTION. IN ADDITION, BECAUSE THE RECORD IS SILENT ON THE MATTER OF THE USER'S ACTUAL NEEDS, WE RECOMMEND THAT THE DISTRICT CONSIDER THE NECESSITY OF CONTINUING THE REQUIREMENT FOR AN "ONSITE" TESTING FACILITY, SINCE THAT REQUIRES ANY BIDDER TO AMORTIZE THE COST OF EQUIPPING THE LABORATORY OVER THE LIFE OF A ONE YEAR CONTRACT, THUS POTENTIALLY INCREASING THE CONTRACT PRICE TO AN UNREASONABLE DEGREE. THE DISTRICT FINDS THE ONSITE REQUIREMENT IS ESSENTIAL TO ITS NEEDS, IT MAY WISH TO CONSIDER EQUIPPING THE LABORATORY SO THAT BIDDERS NEED NOT INCLUDE THESE CAPITAL COSTS IN THEIR BIDS. ALTERNATIVELY, IT MAY BE FEASIBLE TO IMPOSE A GEOGRAPHICAL SITE LIMITATION WITHIN REASONABLE PROXIMITY OF THE COURT, IF THAT IS FOUND TO BE NECESSARY TO MEET THE "TURNAROUND" TIMES CONSISTENT WITH THE COURT'S MINIMUM NEEDS. COMPUSERVE, B-188990, SEPTEMBER 9, 1977, 77-2 CPD 182.

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