B-208922, OCT 28, 1982

B-208922: Oct 28, 1982

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THE CONTRACTING OFFICER'S REFUSAL TO EXTEND THE BID OPENING DATE TO ENABLE THAT FIRM TO SUBMIT A BID IS UNOBJECTIONABLE WHERE: (1) THERE IS NO ALLEGATION OR EVIDENCE THAT THE AGENCY PURPOSELY DELAYED MAILING THE FIRM A BID PACKAGE TO PREVENT THE FIRM FROM COMPETING FOR THE AWARD. (2) THE COMPETITION GENERATED WAS ADEQUATE. (3) THE PRICES OBTAINED WERE REASONABLE. THE SOLICITATION WAS ISSUED JULY 20. THE ARMY INFORMS US THAT IT MAILED A BID PACKAGE TO ARGUS AS SOON AS THIS TECHNICAL DATA WAS RECEIVED. TELEPHONED THE CONTRACTING OFFICE TO REQUEST POSTPONEMENT OF THE BID OPENING SO IT WOULD HAVE A CHANCE TO PREPARE AND SUBMIT ITS BID. IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT A PROCUREMENT IS NOT LEGALLY DEFECTIVE MERELY BECAUSE A POTENTIAL CONTRACTOR WAS PREVENTED FROM SUBMITTING A BID DUE TO SOME INADVERTENT AGENCY ACTION.

B-208922, OCT 28, 1982

DIGEST: WHERE A FIRM RECEIVED A COPY OF THE SOLICITATION ONLY ONE DAY PRIOR TO BID OPENING, THE CONTRACTING OFFICER'S REFUSAL TO EXTEND THE BID OPENING DATE TO ENABLE THAT FIRM TO SUBMIT A BID IS UNOBJECTIONABLE WHERE: (1) THERE IS NO ALLEGATION OR EVIDENCE THAT THE AGENCY PURPOSELY DELAYED MAILING THE FIRM A BID PACKAGE TO PREVENT THE FIRM FROM COMPETING FOR THE AWARD; (2) THE COMPETITION GENERATED WAS ADEQUATE; AND (3) THE PRICES OBTAINED WERE REASONABLE.

ARGUS MANUFACTURING CORP.:

ARGUS MANUFACTURING CORP. PROTESTS THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. DAAA09-82-B-0652, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED BY THE DEPARTMENT OF THE ARMY FOR A QUANTITY OF RINGS FOR END USE IN THE M102 HOWITZER. ARGUS MAINTAINS THAT IN DENYING ITS REQUEST FOR AN EXTENSION OF THE BID OPENING DATE, THE ARMY IMPROPERLY PREVENTED IT FROM SUBMITTING A BID. WE DENY THE PROTEST.

ACCORDING TO INFORMATION FURNISHED US BY THE ARMY, THE SOLICITATION WAS ISSUED JULY 20, 1982, WITH BID OPENING SCHEDULED FOR AUGUST 24. AFTER THE INITIAL MAILING, NUMEROUS ADDITIONAL FIRMS REQUESTED COPIES OF THE IFB, WHICH INCLUDED A PACKET OF TECHNICAL DATA. FILLING THESE REQUESTS IN ORDER OF RECEIPT, THE ARMY RAN OUT OF TECHNICAL DATA PACKETS BEFORE REACHING ARGUS' REQUEST. THE ARMY PROMPTLY REORDERED THE TECHNICAL DATA, BUT DID NOT RECEIVE THE ADDITIONAL COPIES UNTIL AUGUST 19. THE ARMY INFORMS US THAT IT MAILED A BID PACKAGE TO ARGUS AS SOON AS THIS TECHNICAL DATA WAS RECEIVED. ARGUS DID NOT RECEIVE THE BID PACKAGE UNTIL THE DAY BEFORE BID OPENING, HOWEVER, AND ON THE MORNING OF AUGUST 24, TELEPHONED THE CONTRACTING OFFICE TO REQUEST POSTPONEMENT OF THE BID OPENING SO IT WOULD HAVE A CHANCE TO PREPARE AND SUBMIT ITS BID. THE CONTRACTING OFFICER DENIED THIS REQUEST AFTER DETERMINING THAT THE NUMBER OF BIDS ALREADY RECEIVED (9) WOULD ASSURE ADEQUATE COMPETITION.

IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT A PROCUREMENT IS NOT LEGALLY DEFECTIVE MERELY BECAUSE A POTENTIAL CONTRACTOR WAS PREVENTED FROM SUBMITTING A BID DUE TO SOME INADVERTENT AGENCY ACTION. SEE, E.G., BALMAR CRIMP TOOL CORP.; ASTRO TOOL COMPANY, B-203917, B-203917.2, SEPTEMBER 18, 1981, 81-2 CPD 227. THIS RULE DERIVES FROM THE MORE GENERAL PRINCIPLE OF FEDERAL PROCUREMENT THAT THE PROPRIETY OF A PROCUREMENT RESTS NOT UPON WHETHER A PARTICULAR FIRM WAS GIVEN AN OPPORTUNITY TO BID, BUT UPON WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED BY THE GOVERNMENT. POLYTECH, INCORPORATED, B-199770, JANUARY 7, 1981, 81-1 CPD 14. THE BIDDER BEARS THE RISK OF NONRECEIPT OR DELAY IN THE RECEIPT OF SOLICITATIONS, AND IN THE ABSENCE OF SUBSTANTIVE PROOF THAT THE AGENCY DELIBERATELY ATTEMPTED TO EXCLUDE A BIDDER FROM COMPETING, OUR OFFICE WILL NOT DISTURB A PROCUREMENT WHERE ADEQUATE COMPETITION WAS GENERATED AND REASONABLE PRICES OBTAINED. ID.

IN THIS CASE, THE ARMY INVITED 183 FIRMS TO COMPETE FOR THE AWARD AND RECEIVED NINE BIDS. BECAUSE SEVEN OF THE BIDS WERE BELOW THE GOVERNMENT ESTIMATE, THE CONTRACTING OFFICER DETERMINED THAT THE PROPOSED AWARD PRICES WERE REASONABLE. WHILE IT IS UNFORTUNATE THAT ARGUS DID NOT HAVE SUFFICIENT TIME TO SUBMIT A BID, WE FIND THAT THE COMPETITION WAS ADEQUATE AND RESULTED IN REASONABLE PRICES BEING OFFERED. SINCE THERE IS NO ALLEGATION OR EVIDENCE THAT THE ARMY ACTED PURPOSELY TO EXCLUDE ARGUS FROM BIDDING, THE PROCUREMENT WAS NOT DEFECTIVE AND THE CONTRACTING OFFICER'S REFUSAL TO EXTEND THE BID OPENING DATE IS NOT LEGALLY OBJECTIONABLE.

THE PROTEST IS DENIED.