B-205142.2,L/M, MAR 18, 1982, OFFICE OF GENERAL COUNSEL

B-205142.2,L/M: Mar 18, 1982

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VICE PRESIDENT WE HAVE RECEIVED YOUR TELEX OF FEBRUARY 22. (2) IT IS INCONCEIVABLE TO YOU THAT THE OMISSION OF YOUR FIRM FROM THE BIDDERS MAILING LIST WAS INADVERTENT. THERE IS ONLY ONE VALID BID ON MOST ITEMS. (4) YOUR SUBSCRIPTION TO THE COMMERCE BUSINESS DAILY (CBD) EXPIRED SHORTLY BEFORE THE SOLICITATION WAS ISSUED SO. IT APPARENTLY IS YOUR POSITION THAT THESE FOUR FACTORS WARRANT REVERSAL OF OUR FEBRUARY 10 RULING. WE EMPHASIZE THAT OUR FUNCTION AS AN IMPARTIAL ARBITER OF BID PROTESTS IS EXCLUSIVELY DECISIONAL IN NATURE. THAT IS. WE WILL REVIEW THE RECORD IN A GIVEN CASE AND. WILL DETERMINE WHETHER THE PROCUREMENT ACTION COMPLAINED OF WAS. OUR REVIEW OF A BID PROTEST CASE IS CONFINED TO THE WRITTEN RECORD AS DEVELOPED BY THE PROTESTER AND THE AGENCY.

B-205142.2,L/M, MAR 18, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE ONTARIO KNIFE COMPANY:

ATTENTION: ROBERT L. STAMP, VICE PRESIDENT

WE HAVE RECEIVED YOUR TELEX OF FEBRUARY 22, 1982 WHEREIN YOU STATE THAT YOU FIND UNACCEPTABLE OUR DECISION OF FEBRUARY 10, DENYING YOUR PROTEST AGAINST AWARD UNDER INVITATION FOR BIDS (IFB) NO. 9FCC-OKX-A A0495/81, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). YOU ASK THAT WE ASSIGN "A NEW INVESTIGATING STAFF" TO CONSIDER YOUR "NEW PROTEST" BASED ON FOUR POINTS OF INFORMATION: (1) GSA ANSWERED YOUR REQUEST UNDER THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552 (1976), IN AN INCOMPLETE MANNER; (2) IT IS INCONCEIVABLE TO YOU THAT THE OMISSION OF YOUR FIRM FROM THE BIDDERS MAILING LIST WAS INADVERTENT; (3) YOU DO NOT UNDERSTAND HOW COMPETITIVE BIDDING CAN EXIST WHERE, AS HERE, THERE IS ONLY ONE VALID BID ON MOST ITEMS; AND (4) YOUR SUBSCRIPTION TO THE COMMERCE BUSINESS DAILY (CBD) EXPIRED SHORTLY BEFORE THE SOLICITATION WAS ISSUED SO, ABSENT RECEIPT OF A BID PACKAGE, YOU HAD NO WAY OF LEARNING OF THE PROCUREMENT. IT APPARENTLY IS YOUR POSITION THAT THESE FOUR FACTORS WARRANT REVERSAL OF OUR FEBRUARY 10 RULING. FOR THE REASONS EXPLAINED BELOW, WE DO NOT AGREE.

AS A PRELIMINARY MATTER, YOUR TELEX EVIDENCES A POSSIBLE MISUNDERSTANDING OF OUR OFFICE'S ROLE IN THE BID PROTEST PROCESS AND THE MANNER IN WHICH WE REACH A DECISION IN A BID PROTEST. WE EMPHASIZE THAT OUR FUNCTION AS AN IMPARTIAL ARBITER OF BID PROTESTS IS EXCLUSIVELY DECISIONAL IN NATURE. THAT IS, WE WILL REVIEW THE RECORD IN A GIVEN CASE AND, AFTER ALSO REVIEWING APPLICABLE STATUTES, PROCUREMENT REGULATIONS AND PRIOR DECISIONS OF OUR OFFICE, WILL DETERMINE WHETHER THE PROCUREMENT ACTION COMPLAINED OF WAS, IN FACT, IMPROPER. CONTRARY TO YOUR APPARENT IMPRESSION, OUR STAFF DOES NOT "INVESTIGATE" PROTESTED AGENCY ACTIONS. RATHER, OUR REVIEW OF A BID PROTEST CASE IS CONFINED TO THE WRITTEN RECORD AS DEVELOPED BY THE PROTESTER AND THE AGENCY. IT IS SOLELY THE RESPONSIBILITY OF THE PARTIES TO OBTAIN AND TIMELY FURNISH TO OUR OFFICE ANY EVIDENCE FAVORABLE TO THEIR SIDE OF THE DISPUTE.

THE PROTESTER HAS THE BURDEN OF PROVING ITS CASE. A PROTESTER'S ALLEGATIONS ALONE OR MERE SUSPICION OF WRONGDOING WILL NOT BE SUFFICIENT TO CARRY THIS BURDEN; IT MUST SUBMIT DOCUMENTED EVIDENCE WHICH PROVES THAT ITS ALLEGATIONS ARE TRUE. WHERE A PROTESTER FAILS TO SUBMIT SUCH EVIDENCE, OR WHERE WE FIND THAT THE AGENCY HAS SUFFICIENTLY REBUTTED THE OFFERED EVIDENCE, WE WILL DENY THE PROTEST. WHERE THE PROTESTER BELIEVES THAT WE HAVE DECIDED ITS CASE INCORRECTLY, IT MAY, UNDER OUR BID PROTEST PROCEDURES, REQUEST THAT WE RECONSIDER OUR DECISION BASED ON INFORMATION NOT PREVIOUSLY CONSIDERED, OR ERRORS OF LAW. A RECONSIDERATION IS NOT A "NEW PROTEST" AS YOU HAVE CHARACTERIZED YOUR REQUEST, BUT RATHER, A DISTINCT PROCEDURE UNDER WHICH WE REEXAMINE THE CORRECTNESS OF OUR DECISION IN LIGHT OF THE NEW INFORMATION SUBMITTED BY THE PROTESTER. WILL REVERSE A PRIOR DECISION ONLY WHERE NEWLY DISCOVERED INFORMATION INDICATES IT WAS BASED ON AN INCORRECT UNDERSTANDING OF THE FACTS, OR IT IS SHOWN THAT WE MISAPPLIED THE LAW. AGAIN, IT IS NOT OUR PRACTICE TO CONDUCT INVESTIGATIONS IN THE COURSE OF RECONSIDERING A PRIOR DECISION; OUR REVIEW IS BASED EXCLUSIVELY UPON THE INFORMATION UPON WHICH THE PROTESTER BASES ITS REQUEST.

IN YOUR ORIGINAL PROTEST, YOU COMPLAINED THAT YOUR FIRM HAD NOT RECEIVED A COPY OF GSA'S MOST RECENT SOLICITATION FOR CERTAIN CUTLERY AND FOOD HANDLING TOOLS. BECAUSE YOUR FIRM WAS THE INCUMBENT CONTRACTOR AND HAD SATISFACTORILY PERFORMED UNDER THIS SAME REQUIREMENT SEVERAL TIMES PREVIOUSLY, YOU BELIEVED THAT THIS OMISSION WAS ATTRIBUTABLE EITHER TO GROSS NEGLIGENCE OR PURPOSEFUL ACTION ON GSA'S PART. GSA EXPLAINED IN ITS REPORT THAT THE OMISSION WAS INADVERTENT AND THAT ITS INVESTIGATION OF THE MATTER TURNED UP NO EVIDENCE OF WRONGDOING BY GSA. IT ALSO POINTED OUT THAT YOUR FIRM HAD A FAIR OPPORTUNITY TO BID ON THE REQUIREMENT SINCE IT WAS PUBLICIZED IN THE CBD. WE RULED IN FAVOR OF GSA BASED ON OUR LONGSTANDING POSITION THAT THE MERE OMISSION OF A POTENTIAL BIDDER (EVEN THE INCUMBENT) FROM A MAILING LIST DOES NOT RENDER A PROCUREMENT DEFECTIVE WHERE THE COMPETITION WAS SUFFICIENT, PRICES RECEIVED WERE REASONABLE, AND THERE IS NO EVIDENCE THAT THE AGENCY INTENDED TO PRECLUDE ANY FIRM FROM COMPETING. YOU SUBMITTED NO EVIDENCE IN SUPPORT OF YOUR SUSPICION THAT GSA PURPOSELY MAY HAVE OMITTED YOUR FIRM'S NAME FROM THE BIDDERS MAILING LIST, SO WE COULD NOT SUSTAIN YOUR PROTEST ON THIS GROUND. SINCE WE ALSO FOUND THAT GSA HAD MADE A "SIGNIFICANT EFFORT" TO OBTAIN COMPETITION (I.E., BY SENDING OUT 227 SOLICITATIONS AND PUBLISHING THE PROCUREMENT NOTICE IN THE CBD), AND THAT THE PRICES BID WERE REASONABLE, THERE WAS NO LEGAL BASIS UPON WHICH WE COULD SUSTAIN YOUR PROTEST.

YOU BASE YOUR REQUEST FOR RECONSIDERATION ON THE FOUR FACTORS SET FORTH ABOVE, EACH OF WHICH WE NOW ADDRESS. FIRST, THE FACT THAT GSA'S RESPONSE TO YOUR FOIA REQUEST MAY HAVE BEEN UNSATISFACTORY HAS NO BEARING ON OUR REVIEW OF YOUR PROTEST. OUR OFFICE HAS NO AUTHORITY UNDER FOIA TO DETERMINE WHAT RECORDS MUST BE RELEASED BY OTHER GOVERNMENT AGENCIES. A FOIA REQUEST IS IGNORED OR DENIED IN WHOLE OR IN PART, THE PROTESTER'S SOLE REMEDY IS TO FILE SUIT IN THE UNITED STATES DISTRICT COURT. SEE BELL & HOWELL CORPORATION, B-196165, JULY 20, 1981, 81-2 CPD 49; FIELD MAINTENANCE SERVICES CORPORATION, 56 COMP.GEN. 1008 (1977), 77-2 CPD 235.

SECOND, WHETHER OR NOT THE OMISSION OF YOUR FIRM FROM THE BIDDERS MAILING LIST WAS INADVERTENT WAS A QUESTION OF FACT WHICH HAD TO BE DECIDED ON THE BASIS OF EVIDENCE IN THE RECORD. GSA STATED IN ITS REPORT ITS INTERNAL INVESTIGATION OF THE MATTER UNCOVERED NO EVIDENCE THAT THE OMISSION WAS PURPOSEFUL. YOU SUBMITTED NO EVIDENCE, BEYOND MERE SUSPICION, THAT GSA'S FINDINGS WERE INCORRECT, AND THUS FAILED TO PROVE YOUR CASE. WE EMPHASIZE ONCE AGAIN THAT OUR DECISIONS MUST BE SUPPORTED BY EVIDENCE SUBMITTED TO OUR OFFICE BY THE PARTIES TO THE PROTEST; WE CANNOT SUSTAIN A BID PROTEST ON THE SOLE GROUND THAT A PROTESTER SUSPECTS IMPROPER AGENCY ACTION.

THIRD, THE ADEQUACY OF COMPETITION OBTAINED FOR A PROCUREMENT IS NOT GAUGED, AS YOU SUGGEST, SOLELY BY THE NUMBER OF BIDS RECEIVED. RATHER, WE WILL CONSIDER THE NUMBER OF BIDS RECEIVED IN LIGHT OF THE NUMBER OF PROSPECTIVE BIDDERS WHICH WERE GIVEN THE OPPORTUNITY TO COMPETE. UNDER THIS APPROACH, RECEIPT OF ONLY ONE OR A FEW BIDS COULD INDICATE EITHER ADEQUATE OR INADEQUATE COMPETITION, THE DETERMINING FACTOR BEING WHETHER THE CONTRACTING OFFICER MADE A SIGNIFICANT ATTEMPT TO MAKE ALL POTENTIAL BIDDERS AWARE OF THE PROCUREMENT. HERE, THE CONTRACTING OFFICER SENT BID PACKAGES TO 227 FIRMS, AND PUBLISHED A NOTICE IN THE CBD AS REQUIRED BY REGULATION. SINCE ESSENTIALLY ALL POTENTIAL BIDDERS, INCLUDING YOUR FIRM, HAD EQUAL ACCESS TO THIS PUBLIC INFORMATION, WE BELIEVE THE CONTRACTING OFFICER TOOK SUFFICIENT STEPS TO MAXIMIZE COMPETITION. UNDER THESE CIRCUMSTANCES, THE FIVE BIDS RECEIVED WERE SUFFICIENT TO CONSTITUTE ADEQUATE COMPETITION.

EVEN IF, AS YOU ALLEGE, ONLY ONE VALID BID WAS RECEIVED FOR SOME OF THE ITEMS HERE, OUR CONCLUSION IS NOT CHANGED; WE HAVE LONG RECOGNIZED THAT COMPETITION CAN BE EFFECTIVE EVEN WHERE ONLY A SINGLE BID WAS RECEIVED, SO LONG AS IT WAS SUBMITTED UNDER THE THREAT OF COMPETITION. SEE, FOR EXAMPLE, PREVENTIVE HEALTH PROGRAMS, INC., B-195877, JANUARY 22, 1980, 80-1 CPD 63; CULLIGAN INCORPORATED, CINCINNATI, OHIO, 56 COMP.GEN. 1011 (1977), 77-2 CPD 242. AS FOR THE SPECIFIC ITEMS ON WHICH YOU STATE ONLY ONE VALID BID WAS RECEIVED - ITEMS 59-60 AND 77-89 - GSA INFORMS US THAT LAMSON AND, CONTRARY TO YOUR STATED BELIEF, ANCHOR EQUIPMENT WERE BOTH QUALIFIED FOR AWARD. ANCHOR, A REGULAR DEALER, SPECIFIED LAMSON AS ITS MANUFACTURER.

FINALLY, THE FACT THAT YOUR FIRM'S SUBSCRIPTION TO THE CBD HAD EXPIRED SHORTLY PRIOR TO THIS PROCUREMENT DOES NOT ALTER OUR CONCLUSION THAT COMPETITION WAS ADEQUATE. NOTICE IN THE CBD IS INTENDED ONLY TO MAKE PROCUREMENT INFORMATION GENERALLY AVAILABLE TO PROSPECTIVE BIDDERS. IT IS EACH BIDDER'S RESPONSIBILITY TO REVIEW THE CBD IF IT SO DESIRES, AND THE FACT THAT SOME BIDDERS DO NOT SEE THE NOTICE FOR A PARTICULAR PROCUREMENT DOES NOT RENDER THE NOTICE OR THE PROCUREMENT DEFECTIVE. WE ADD THAT, CONTRARY TO YOUR UNDERSTANDING, THE CBD IS PUBLISHED BY THE DEPARTMENT OF COMMERCE, NOT BY GSA.

I HOPE THAT YOU NOW MORE FULLY APPRECIATE THE BASIS FOR OUR DECISION AND THAT THE REQUESTED REVERSAL IS NOT WARRANTED.