B-235332, Aug 2, 1989, 89-2 CPD 99

B-235332: Aug 2, 1989

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PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Notification DIGEST: Protest that bidder did not receive an amendment to solicitation is denied absent evidence that the failure resulted from a deliberate attempt on the part of the agency to exclude firm or that full and open competition was not obtained. Surgical contends that its submission of a nonconforming bid sample and the rejection of its bid as nonresponsive were caused by its failure to receive an amendment to the solicitation which clarified an ambiguous provision. Although Surgical was not on the original bidders' list. The agency reports that the amendment was sent to those firms to which the solicitation had been sent.

B-235332, Aug 2, 1989, 89-2 CPD 99

PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Notification DIGEST: Protest that bidder did not receive an amendment to solicitation is denied absent evidence that the failure resulted from a deliberate attempt on the part of the agency to exclude firm or that full and open competition was not obtained.

Surgical Specialties Instrument Company, Inc.:

Surgical Specialties Instrument Company, Inc., protests the award of a contract to any other bidder under invitation for bids No. M1-98-89 issued by the Veterans Administration (VA) for skin marker pens for use in surgery. Surgical contends that its submission of a nonconforming bid sample and the rejection of its bid as nonresponsive were caused by its failure to receive an amendment to the solicitation which clarified an ambiguous provision.

We deny the protest.

The solicitation, issued on January 27, 1989, required bidders to provide samples. Although Surgical was not on the original bidders' list, the firm requested and received a copy of the solicitation. Subsequent to the issuance of the solicitation, the contracting officer found that while the solicitation included a commercial item description that would include four different pens, the solicitation did not indicate the specific pen sought by the agency. On February 22, the agency issued an amendment to identify the specific pen required. The agency reports that the amendment was sent to those firms to which the solicitation had been sent. Surgical responds that it never received the amendment.

Surgical's bid, which was the fifth highest bid received, was rejected as nonresponsive because its bid sample was not the pen identified in the amended solicitation. Surgical argues that it supplied a nonconforming bid sample because the original solicitation, which Surgical says is all it received, was ambiguous as to which of the four listed pens was required. The protester contends that had it received the amendment, it would have offered the proper item at a much lower price. Finally, Surgical argues that of six bidders, only the awardee received the amendment.

Generally, the risk of nonreceipt of a solicitation amendment rests with the bidder. Maryland Computer Servs., Inc., B-216990, Feb. 12, 1985, 85-1 CPD Para. 187. The propriety of a particular procurement is determined on the basis of whether full and open competition was achieved and reasonable prices were obtained, and whether the agency made a conscious and deliberate effort to exclude a bidder from competing for the contract. Shemya Constructors, B-232928.2, Feb. 2, 1989, 68 Comp.Gen. ***, 89-1 CPD Para. 108.

Here, the protester does not allege and the record does not show any deliberate attempt to exclude the protester from the competition. The VA says that Surgical was placed on the bidders' list after the firm requested the solicitation and the amendment was sent to everyone on the bidders' list, including Surgical. Although Surgical contends that none of the bidders except the awardee received the amendment, the agency says, and the bid abstract demonstrates, that four of the five other bidders either returned or acknowledged receipt of the amendment. Further, there is nothing to suggest that the contracting officer had notice that Surgical had not received the amendment. The agency also indicates that it made award at a price which was identical to that obtained under the prior year's procurement for the same item. As the record shows that full and open competition and reasonable prices were obtained, we see no reason to disturb the award. We deny the protest.