B-192432, FEBRUARY 9, 1979

B-192432, FEBRUARY 9, 1979

DIGEST: PROTESTS REGARDING SOLICITATION, ISSUED BY PRIVATE CONSULTING FIRM PURSUANT TO FIRM'S CONTRACT WITH GOVERNMENT AGENCY, WHICH HAS BEEN CANCELED IN ACCORDANCE WITH AGENCY'S STOPWORK ORDER TO CONSULTANT, ARE DISMISSED AS MOOT.

LANIER BUSINESS PRODUCTS, INC.; SAVIN BUSINESS MACHINES CORPORATION:

LANIER BUSINESS PRODUCTS, INC. (LANIER), AND SAVING BUSINESS MACHINES CORPORATION (SAVIN) HAVE PROTESTED AGAINST A SOLICITATION ISSUED BY REG LITTLE & ASSOCIATES, INC. (RLA), A PRIVATE CONSULTING FIRM, UNDER RLA'S CONTRACT, NO. ICC-78-C-0001, WITH THE INTERSTATE COMMERCE COMMISSION (ICC).

PURSUANT TO THE CONTRACT, WHICH WAS AWARDED ON NOVEMBER 29, 1977, RLA PERFORMED A SURVEY AND ANALYSIS OF THE ICC HEADQUARTERS STAFF PAPERWORK MANAGEMENT AND DOCUMENTATION PROCESSING PROCEDURES AND SUBMITTED A REPORT WHICH INCLUDED RECOMMENDATIONS FOR IMPROVEMENT AND ALTERNATE SOLUTIONS. UPON ICC APPROVAL OF RLA'S RECOMMENDATIONS, A SECOND STAGE OF THE CONTRACT (FOR IMPLEMENTATION OF THE RECOMMENDATIONS, INCLUDING ACQUISITION AND INSTALLATION OF EQUIPMENT) WAS INITIATED BY A CHANGE ORDER TO THE CONTRACT ISSUED ON MAY 10, 1978. ON JUNE 26, 1978, RLA ISSUED AN "OFFER TO SUBMIT BIDS" FOR TEXT EDITING, DICTATION, PHOTO-COMPOSITION, RECORDS MANAGEMENT, TELEPHONE, AND FACSIMILE SYSTEMS AND PHOTOCOPIERS WHICH CALLED FOR BID OPENING ON JULY 21, 1978. RLA CONDUCTED INFORMATION MEETINGS FOR PROSPECTIVE BIDDERS ON JULY 3, 1978.

ON JULY 17, 1978, HOWEVER, LANIER PROTESTED TO OUR OFFICE AGAINST THE RECEIPT AND OPENING OF BIDS IN RESPONSE TO THE RLA SOLICITATION ON THE BASIS THAT RLA'S PROCEDURES ARE CONTRARY TO THE TERMS OF THE RLA/ICC CONTRACT AND FEDERAL PROCUREMENT LAW AND POLICY. COUNSEL FOR LANIER ASSERTS THAT THE CONTRACT CONSTITUTES AN IMPROPER DELEGATION OF ICC'S MANAGERIAL AND ADMINISTRATIVE FUNCTIONS AND CIRCUMVENTS FEDERAL SUPPLY SCHEDULE (FSS) REQUIREMENTS. LANIER FURTHER CONTENDS THAT THE DICTATION SYSTEM AND TEXT EDITING SYSTEM SPECIFICATIONS USED IN RLA'S SOLICITATION DESCRIBE EQUIPMENT PROPRIETARY TO AND MANUFACTURED BY A PARTICULAR FIRM, ARE UNDULY RESTRICTIVE OF COMPETITION, AND ATTEMPT TO EFFECT SOLE-SOURCE PROCUREMENTS.

ON JULY 18 AND 20, 1978, THE ICC CONTRACTING OFFICER ORDERED RLA TO STOP WORK ON ALL PORTIONS OF THE CONTRACT INVOLVING ACQUISITION OF EQUIPMENT FOR THE ICC. THE FOLLOWING DAY, SAVIN PROTESTED TO OUR OFFICE AGAINST ICC'S ACTION IN CONTRACTING WITH RLA FOR THE PROCUREMENT OF PHOTOCOPIERS AND THE MANNER IN WHICH RLA SOLICITED BIDS FOR PHOTOCOPY EQUIPMENT. COUNSEL FOR SAVIN CONTENDS THAT THE ICC HAS CIRCUMVENTED THE STATUTORY REQUIREMENT FOR FORMAL ADVERTISEMENT AND FSS REQUIREMENTS BY CONTRACTING WITH RLA, AND THAT RLA'S COPIER SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION BECAUSE THEY DESCRIBE EQUIPMENT MADE BY A SINGLE MANUFACTURER.

THE ICC STATES THAT IN ORDERING RLA TO STOP ACQUISITION WORK ON THE CONTRACT, ALL BIDS SUBMITTED IN RESPONSE TO RLA'S JUNE 26 SOLICITATION WERE RETURNED UNOPENED TO THE BIDDERS AND THE SOLICITATION WAS CANCELED ON JULY 21, 1978.

BECAUSE THE SOLICITATION WHICH THE PROTESTERS QUESTION WAS CANCELED ON JULY 21, 1978, THIS ACTION RENDERS THOSE PORTIONS OF THE PROTESTS CONCERNING THE PROPRIETY OF THE SOLICITATION SPECIFICATIONS, AND RECEIPT AND OPENING OF BIDS IN RESPONSE TO THE SOLICITATION, MOOT. SEE SUBURBAN INDUSTRIAL MAINTENANCE COMPANY, B-185515, MARCH 24, 1976, 76-1 CPD 193; YOUNG ENGINEERING SYSTEMS, B-189322, JULY 11, 1977, 77-2 CPD 15; CF. GALION MANUFACTURING DIVISION OF DRESSER INDUSTRIES, INC., B-188259, 189039, SEPTEMBER 26, 1977, 77-2 CPD 224.

WE HAVE SUBSEQUENTLY ASCERTAINED THAT ON NOVEMBER 3, 1978, THE ICC ISSUED IN ITS OWN RIGHT SOLICITATION NO. ICC-79-B-0001 FOR TEXT PROCESSING AND HIGH-SPEED PRINTING EQUIPMENT. THUS, THE ISSUE CONCERNING RLA'S IMPLEMENTATION OF THE CONTRACT BY ACQUISITION ON BEHALF OF ICC ALSO APPEARS TO BE ACADEMIC. SEE ANCHOR MENTAL HEALTH ASSOCIATION, B-192500, SEPTEMBER 12, 1978, 78-2 CPD 194. WE NOTE THAT BID OPENING UNDER SOLICITATION ICC-79-B-0001 WAS HELD ON DECEMBER 6, 1978, THAT A CONTRACT WAS AWARDED ON DECEMBER 19, 1978, AND THAT A PROTEST AGAINST THAT PROCUREMENT HAS BEEN FILED WITH OUR OFFICE. THE LATTER PROTEST IS BEING HANDLED BY OUR OFFICE UNDER A SEPARATE FILE.

IN VIEW OF THE CANCELLATION OF THE RLA SOLICITATION, THE PROTESTS UNDER THAT SOLICITATION ARE DISMISSED AS MOOT.