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B-172664, NOV 11, 1971

B-172664 Nov 11, 1971
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THE CONTRACTING OFFICER'S REJECTION OF PROTESTANT'S LOW BID WAS PROPER. THE ACCEPTANCE PERIOD OF THE SECOND LOW BID WAS THROUGH INADVERTENCE. ALLOWED TO LAPSE BEFORE PROOF OF THE ALLEGED ERROR WAS OFFERED. FURTHER EXAMINATION REVEALED THAT THE THIRD LOW BID (ADVANCE BUILDING) WAS BELOW THE GOVERNMENT ESTIMATE AND REJECTION OF IT WOULD NOT BE WARRANTED. IS PROPER. ALTHOUGH THE AWARD TO ADVANCE BUILDING IS AT A HIGHER PRICE THAN THE PREVIOUS CONTRACT. THE CONTRACTOR'S COMPLIANCE WITH THE WAGE PRICE FREEZE IS FOR DETERMINATION BY THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL. THE PROTEST IS DENIED. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ADVANCE BUILDING MAINTENANCE COMPANY PURSUANT TO INVITATION FOR BIDS NO.

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B-172664, NOV 11, 1971

BID PROTEST - EXPIRATION OF BID - WAGE-PRICE FREEZE SUSTAINING PRIOR DECISION WHICH DENIED PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO ADVANCE BUILDING MAINTENANCE COMPANY, THIRD LOW BIDDER UNDER AN IFB ISSUED BY THE NAVAL SHIP RESEARCH AND DEVELOPMENT CENTER, WASHINGTON, D.C. THE CONTRACTING OFFICER'S REJECTION OF PROTESTANT'S LOW BID WAS PROPER. WHILE IT ORIGINALLY APPEARED THAT THE NAVY WOULD CANCEL THE IFB BECAUSE OF AN ALLEGED ERROR IN THE SECOND LOW BID AND THE EXCESSIVE PRICE OF THE THIRD LOW BID, THE ACCEPTANCE PERIOD OF THE SECOND LOW BID WAS THROUGH INADVERTENCE, ALLOWED TO LAPSE BEFORE PROOF OF THE ALLEGED ERROR WAS OFFERED. FURTHER EXAMINATION REVEALED THAT THE THIRD LOW BID (ADVANCE BUILDING) WAS BELOW THE GOVERNMENT ESTIMATE AND REJECTION OF IT WOULD NOT BE WARRANTED. AWARD TO ADVANCE, THEREFORE, IS PROPER. FINALLY, ALTHOUGH THE AWARD TO ADVANCE BUILDING IS AT A HIGHER PRICE THAN THE PREVIOUS CONTRACT, THE CONTRACTOR'S COMPLIANCE WITH THE WAGE PRICE FREEZE IS FOR DETERMINATION BY THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL. ACCORDINGLY, THE PROTEST IS DENIED.

TO NATIONWIDE BUILDING MAINTENANCE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ADVANCE BUILDING MAINTENANCE COMPANY PURSUANT TO INVITATION FOR BIDS NO. N62477-71-C-0138, ISSUED BY THE NAVAL SHIP RESEARCH AND DEVELOPMENT CENTER, WASHINGTON, D.C., AS BEING CONTRARY TO OUR DECISION B-172664, MAY 28, 1971.

IN THE CITED DECISION WE DENIED YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S REJECTION OF YOUR BID UNDER THE SUBJECT INVITATION. IN THE COURSE OF OUR OPINION, WE STATED THAT THE NAVY REPORTED THAT THE SECOND LOW BIDDER WILL BE PERMITTED TO WITHDRAW ITS BID BECAUSE OF AN ERROR THEREIN, AND SINCE THE REMAINING BID OF ADVANCE BUILDING MAINTENANCE COMPANY IS CONSIDERED EXCESSIVE THE INVITATION WILL BE CANCELLED AND THE REQUIREMENT READVERTISED. THE NAVY'S REPORT IS DATED MAY 7, 1971.

IN A REPORT DATED OCTOBER 8, 1971, IN RESPONSE TO THE SUBJECT PROTEST THE NAVY REPORTS THAT THE STATEMENT IN ITS EARLIER REPORT, CONCERNING WITHDRAWAL OF THE SECOND LOW BID WAS BASED UPON THE ASSUMPTION THAT THE BIDDER WOULD SUBMIT EVIDENCE SUPPORTING ITS CLAIM OF ERROR. HOWEVER, THE BID WAS INADVERTENTLY ALLOWED TO EXPIRE BEFORE THE NECESSARY EVIDENCE WAS SUBMITTED. WITH REGARD TO THE STATEMENT THAT ADVANCE'S BID WAS CONSIDERED EXCESSIVE, IT IS REPORTED THAT SUBSEQUENT EXAMINATION REVEALED THAT REJECTION OF ITS BID OF $159,052 AS EXCESSIVE WOULD NOT BE WARRANTED IN VIEW OF THE GOVERNMENT ESTIMATE OF $173,370. AWARD WAS MADE TO ADVANCE ON AUGUST 12, 1971.

WE SEE NO BASIS FOR CONCLUDING THAT THE AWARD WAS CONTRARY TO OUR DECISION AS YOU CONTEND. THE PROPRIETY OF EITHER CANCELLING THE IFB OR PROCEEDING TO MAKE AN AWARD TO ONE OF THE REMAINING BIDDERS WAS NOT RAISED AS AN ISSUE IN OUR PRIOR DECISION. IN THE CIRCUMSTANCES, WE SEE NO PROPER BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE REVISED ADMINISTRATIVE DETERMINATION THAT ADVANCE'S BID PRICE WAS NOT EXCESSIVE. HOWEVER, IT APPEARS THAT IN VIEW OF THE SECOND LOW BIDDER'S FAILURE TO SUBMIT EVIDENCE SUPPORTING THE ALLEGED MISTAKE, AWARD SHOULD HAVE BEEN MADE TO IT ON THE BASIS OF ITS BID AS SUBMITTED IF OTHERWISE PROPER. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 406.3(E)(2). SINCE THERE IS NO INDICATION IN THE RECORD BEFORE US THAT THE FAILURE TO MAKE AWARD TO THE SECOND LOW BIDDER RESULTED FROM OTHER THAN INADVERTENCE, THERE IS NO BASIS FOR OUR OFFICE TO DISTURB AN OTHERWISE PROPER AWARD.

YOU ALSO CONTEND THAT THE AWARD TO ADVANCE AT A PRICE HIGHER THAN THE PREVIOUS CONTRACT PRICE WAS CONTRARY TO THE RECENT WAGE-PRICE FREEZE. EXECUTIVE ORDER 11615, DATED AUGUST 15, 1971, THE PRESIDENT STABILIZED PRICES, RENTS, WAGES, AND SALARIES. THE ORDER PROVIDES, AMONG OTHER THINGS, IN SECTION 1 THAT PRICES, RENTS, WAGES, AND SALARIES SHALL BE STABILIZED FOR A PERIOD OF 90 DAYS FROM THE DATE THEREOF AT LEVELS NOT GREATER THAN THE HIGHEST OF THOSE PERTAINING TO A SUBSTANTIAL VOLUME OF ACTUAL TRANSACTIONS FOR LIKE OR SIMILAR GOODS OR SERVICES. IN ADDITION, THE ORDER PROVIDES FOR THE ESTABLISHMENT OF A COST OF LIVING COUNCIL TO CARRY OUT THE PURPOSES THEREOF.

IN IMPLEMENTATION OF THE ORDER THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS) HAS ISSUED DEFENSE PROCUREMENT CIRCULAR NO. 91, AUGUST 20, 1971, WHICH PROVIDES IN PERTINENT PART, THAT PRIOR TO THE PAYMENT OF INVOICES UNDER EACH CONTRACT THE CONTRACTOR MUST CERTIFY THAT THE AMOUNTS INVOICED DO NOT EXCEED THE LOWER OF (1) THE CONTRACT PRICE, OR (2) MAXIMUM LEVELS ESTABLISHED IN ACCORDANCE WITH THE ORDER. FURTHER, CONTRACT ADMINISTRATION OFFICES ARE REQUIRED TO FURNISH A COPY OF THE CIRCULAR TO EACH CONTRACTOR, AND INVOICES ARE NOT TO BE PAID UNLESS PROPERLY CERTIFIED.

WHETHER THE CONTRACTOR IS IN COMPLIANCE WITH THE PROVISIONS OF EXECUTIVE ORDER 11615 AND THE IMPLEMENTING DPC NO. 91, IS A MATTER FOR DETERMINATION BY THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL.

ACCORDINGLY, YOUR PROTEST IS DENIED.

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