B-176920, FEB 22, 1973

B-176920, FEB 22, 1973

BID PROTEST - DEFECTIVE PROCUREMENT - NONPREJUDICIAL TO ALL OFFERORS DECISION AFFIRMING THE PRIOR DENIAL OF A PROTEST BY COMPUSCAN, INC., AGAINST AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE AUTOMATIC DATA PROCESSING EQUIPMENT SELECTION OFFICE, DEPARTMENT OF THE NAVY. SINCE THE DEFECTIVE PROCUREMENT HAS NOT BEEN SHOWN TO HAVE PRECLUDED ANY PROSPECTIVE OFFEROR FROM SUBMITTING A PROPOSAL OR TO HAVE CAUSED AN UNSUCCESSFUL OFFEROR TO SUBMIT A BID ON NEW EQUIPMENT WHEN IT POSSESSED ACCEPTABLE USED EQUIPMENT, NO OFFEROR CAN BE SAID TO HAVE BEEN PREJUDICED. ACCORDINGLY, AWARD UNDER THIS RFP SHOULD NOT BE DISTURBED.

TO SIMON AND ALLEN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1972, WHICH REQUESTS ON BEHALF OF COMPUSCAN, INC., THAT WE RECONSIDER OUR DECISION (B 176920, DECEMBER 1, 1972) DENYING THAT FIRM'S PROTEST UNDER RFP N66032 72-R-0006 (RFP-0006), ISSUED BY THE AUTOMATIC DATA PROCESSING EQUIPMENT SELECTION OFFICE (ADPESO), DEPARTMENT OF THE NAVY.

AS A RESULT OF THE NAVY'S INADVERTENT FAILURE TO COMPLY WITH ARMED SERVICES PROCUREMENT REGULATION 1-1208, RFP -0006 DID NOT INDICATE WHETHER NEW OR USED EQUIPMENT WAS ACCEPTABLE FOR PURCHASE. AWARD WAS MADE TO A FIRM WHOSE OFFER WAS PREDICATED UPON THE FURNISHING OF USED EQUIPMENT. COMPUSCAN, WHICH SUBMITTED AN OFFER OF NEW EQUIPMENT, CONTENDED THAT IF USED EQUIPMENT WAS ALSO ACCEPTABLE TO THE NAVY, THE CONTRACT SHOULD BE CANCELED AND THE REQUIREMENT RESOLICITED.

IN DENYING COMPUSCAN'S PROTEST, WE CONCLUDED:

"THE SOLICITATION WAS ADMITTEDLY DEFECTIVE IN THAT IT DID NOT INFORM OFFERORS THAT USED EQUIPMENT WAS ACCEPTABLE TO THE NAVY. HOWEVER, IT APPEARS THAT COMPUSCAN DID NOT POSSESS ANY USED EQUIPMENT WHICH IT COULD HAVE OFFERED AND IT HAS NOT BEEN SHOWN THAT COMPUSCAN'S OFFERED PRICE ON ITS NEW EQUIPMENT WOULD HAVE BEEN ALTERED BY THE KNOWLEDGE THAT USED EQUIPMENT WAS ACCEPTABLE. THE SETTLED RULE IS THAT AN AMBIGUITY OR DEFECT IN THE SPECIFICATIONS DOES NOT PRECLUDE A VALID AWARD UNLESS IT CAN ALSO BE SHOWN THAT THE UNSUCCESSFUL FIRM WAS PREJUDICED BY THE AMBIGUITY. COMP. GEN. 23 (1963). IN THE INSTANT CASE, WE CANNOT CONCLUDE THAT YOU WERE PREJUDICED BY THE FAILURE OF THE SOLICITATION TO SPECIFY THE ACCEPTABILITY OF USED EQUIPMENT."

YOUR REQUEST FOR RECONSIDERATION IS BASED UPON THE CONTENTION THAT THE SENTENCE UNDERSCORED ABOVE CONTAINS A MATERIAL ERROR OF FACT. YOU MAINTAIN THAT COMPUSCAN WAS PREJUDICED BY THE OMISSION FROM THE SOLICITATION IN THAT COMPUSCAN WOULD NOT HAVE INCURRED THE EXPENSE OF SUBMITTING A PROPOSAL HAD IT KNOWN THAT USED EQUIPMENT WAS ACCEPTABLE TO THE NAVY.

THE CONCLUSION THAT COMPUSCAN WAS NOT "PREJUDICED" BY THE DEFECT IN THE SOLICITATION WAS MADE WITHIN THE CONTEXT OF OUR DECISION REPORTED AT 43 COMP. GEN. 23 (1963), WHICH STATES IN PERTINENT PART:

"UNDER ORDINARY CIRCUMSTANCES, THE INVITATION MIGHT PROPERLY BE REGARDED AS SO DEFECTIVE AS TO REQUIRE READVERTISING. HOWEVER, WHERE COMPETITION HAS NOT BEEN ADVERSELY AFFECTED, WHERE THE AGENCY BY AWARD WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF A DEFECT IN THE INVITATION, WE HAVE, INSTEAD OF REQUIRING THAT THE PROCUREMENT BE READVERTISED, PERMITTED AWARD UNDER THE INVITATION WITH THE OMISSION OR CORRECTION OF THE PROVISION WHICH WOULD OTHERWISE RENDER THE AWARD INVALID. ***" (ID. AT 26.)

IN THE INSTANT CASE IT DOES NOT APPEAR THAT THE DEFECT IN RFP -0006 ADVERSELY AFFECTED COMPETITION. WE HAVE NOT BEEN ADVISED BY ANY PROSPECTIVE OFFEROR THAT THE OMISSION PRECLUDED IT FROM SUBMITTING A PROPOSAL. NONE OF THE FOUR UNSUCCESSFUL OFFERORS (INCLUDING COMPUSCAN) HAS STATED THAT IT POSSESSED USED EQUIPMENT WHICH IT WOULD HAVE OFFERED HAD THE SOLICITATION EXPRESSLY PERMITTED IT. ADDITIONALLY, AS WE OBSERVED IN OUR DECISION OF DECEMBER 1, 1972, IT HAS NOT BEEN SHOWN THAT THE PRICE OFFERED BY COMPUSCAN FOR ITS NEW EQUIPMENT WOULD HAVE BEEN CHANGED BY THE KNOWLEDGE THAT USED EQUIPMENT ALSO WAS ACCEPTABLE TO THE NAVY.

FURTHER, THROUGH AN AWARD UNDER RFP -0006, ADPESO HAS OBTAINED EQUIPMENT WHICH SATISFIES ALL SPECIFICATION REQUIREMENTS.

FINALLY, THE DEFECT IN THE SOLICITATION DID NOT CONFER AN UNDUE ADVANTAGE UPON ANY OFFEROR. SINCE THE SOLICITATION DID NOT PERMIT ONLY THE SUCCESSFUL OFFEROR TO FURNISH USED EQUIPMENT, ALL OFFERORS WERE FREE TO SUBMIT PROPOSALS BASED UPON THE FURNISHING OF USED EQUIPMENT.

THUS, THE OMISSION IN THE RFP DID NOT DETRACT FROM COMPETITION, NO OFFEROR GAINED AN UNDUE ADVANTAGE BY REASON OF THE OMISSION, AND THE PROCURING ACTIVITY ENTERED INTO A BINDING CONTRACT FOR THE DESIRED ITEMS. THERE IS NO EVIDENCE OF RECORD THAT THE DEFECT IN THE SOLICITATION PREJUDICED COMPUSCAN IN THE SUBMITTAL OF ITS OFFER, AND THE FACT THAT COMPUSCAN WOULD NOT HAVE SUBMITTED AN OFFER HAD IT KNOWN THAT USED EQUIPMENT WAS ACCEPTABLE AFFORDS NO BASIS ON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED. IN VIEW OF THE ABSENCE OF ANY RESTRICTIVE EFFECT UPON COMPETITION, WE REMAIN OF THE OPINION THAT THE AWARD UNDER RFP -0006 SHOULD NOT BE DISTURBED.

ACCORDINGLY, OUR DECISION OF DECEMBER 1, 1972, IS AFFIRMED.