B-171736, JUL 21, 1971

B-171736, JUL 21, 1971

BID PROTEST - SPECIFICATIONS - AMBIGUITY AFFIRMING PRIOR DECISION DENYING PROTEST OF WOODARD RESEARCH CORPORATION AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY HEW, PHS, CENTER FOR DISEASE CONTROL, ATLANTA, GEORGIA. INCLUSION OF PUBLIC LAW 89-544 IN THE INVITATION DID NOT CREATE AN AMBIGUITY AS DEALERS IN ANIMALS, SUCH AS PROTESTANT, ARE PRESUMED TO BE FAMILIAR WITH THIS LAW COVERING IMPORTATION OF ANIMALS. WHETHER PL 89 544 SHOULD BE INCLUDED IN FUTURE INVITATIONS IS A MATTER FOR THE PROCURING AGENCY'S DETERMINATION IN LIGHT OF PARTICULAR CIRCUMSTANCES, NOT TO BE COMMENTED ON IN ADVANCE BY THE COMP. GEN.

TO BURKHARDT, ARNAVAS & BARTL, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1971, ON BEHALF OF WOODARD RESEARCH CORPORATION, REQUESTING RECONSIDERATION AND MODIFICATION OF OUR DECISION OF JUNE 10, 1971, IN WHICH WE DENIED WOODARD'S PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. 14-71, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, CENTER FOR DISEASE CONTROL, ATLANTA, GEORGIA.

THE REQUEST FOR RECONSIDERATION IS BASED UPON THE CONTENTION THAT IN REACHING OUR DECISION WE DID NOT COMPLETELY AND PROPERLY CONSTRUE THE EFFECT OF THE INCORPORATION OF PUBLIC LAW 89-544 IN THE SUBJECT INVITATION. IT IS YOUR POSITION THAT INCLUSION OF PUBLIC LAW 89-544 CREATED AN AMBIGUITY WHICH MISLED WOODARD INTO THINKING THAT ITS COMPETITORS WOULD BE EITHER MANDATORILY OR VOLUNTARILY LICENSED AS "DEALERS" AS PROVIDED IN THE LAW AND, THEREFORE, COMPETING ON AN EQUAL BASIS. SINCE WE DID NOT CONSTRUE INCORPORATION OF THE LAW AS REQUIRING THE CONTRACTOR TO BE A LICENSED DEALER THEREUNDER, IT IS ARGUED THAT WOODARD AS A LICENSED DEALER WAS AT A COMPETITIVE DISADVANTAGE IN THAT IT WAS NOT ON NOTICE THAT A LARGER GROUP OF FIRMS WAS ELIGIBLE TO COMPETE.

ALTHOUGH YOU DO NOT REQUEST THAT OUR DECISION BE MODIFIED TO THE EXTENT THAT THE AWARD TO PRIMELABS BE DISTURBED, YOU DO ASK THAT IT BE MODIFIED - APPARENTLY TO INDICATE THAT PUBLIC LAW 89-544 SHOULD NOT BE INCORPORATED IN FUTURE INVITATIONS UNTIL CERTAIN AMENDMENTS BECOME EFFECTIVE ON DECEMBER 24, 1971, OR, IN THE ALTERNATIVE, THAT WHERE IT IS INCORPORATED PROSPECTIVE BIDDERS MUST COMPLY THEREWITH IN ORDER TO BE ELIGIBLE TO BID AND RECEIVE AN AWARD.

AS INDICATED IN OUR DECISION OF JUNE 10, 1971, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT INCORPORATION OF THE LAW SHOULD BE VIEWED EITHER AS RENDERING THE INVITATION AMBIGUOUS OR AS REQUIRING AS A CONDITION OF ELIGIBILITY THAT BIDDERS BE LICENSED DEALERS. WE DO NOT VIEW THE MERE INCORPORATION OF THE LAW AS REQUIRING MORE THAN THE LAW ITSELF, THAT IS, LICENSING OF DEALERS IN CATS AND DOGS. FURTHERMORE, WE DO NOT VIEW ITS INCORPORATION AS CREATING AN AMBIGUITY SINCE DEALERS IN ANIMALS, WHETHER CATS AND DOGS AND/OR NONHUMAN PRIMATES, ARE PRESUMABLY FAMILIAR WITH THE REQUIREMENTS OF THE LAW. CERTAINLY, AS INDICATED IN THE COVER LETTER SUBMITTING ITS BID, WOODARD WAS FAMILIAR WITH THE LAW. THEREFORE, OUR DECISION OF JUNE 10, 1971, IS AFFIRMED.

WHETHER HEW, OR OTHER GOVERNMENT AGENCIES INCORPORATE, AND UNDER WHAT TERMS, THE PROVISIONS OF PUBLIC LAW 89-544 IN SUBSEQUENT INVITATIONS IS A MATTER FOR THEIR DETERMINATION IN LIGHT OF THE PARTICULAR CIRCUMSTANCES OF THE PROCUREMENT INVOLVED. ACCORDINGLY, WE DO NOT BELIEVE IT WOULD BE PROPER FOR OUR OFFICE TO STATE A POSITION ON A HYPOTHETICAL BASIS AS TO THE VALIDITY OR EFFECT OF SUCH INCORPORATION.