B-211120, SEP 12, 1983

B-211120, SEP 12, 1983

DIGEST: 1. PROTEST THAT SALE INVITATION SHOULD NOT HAVE PERMITTED BIDS ON AGGREGATE ITEM BASIS (ALL OR NONE) IN DEROGATION OF PARTICIPATION BY SMALL BUSINESSES IS DENIED SINCE RECORD REFLECTS ACTIVE PARTICIPATION BY SMALL BUSINESSES AND A LOGICAL BASIS FOR GROUPING OF ITEMS AND PERMITTING ALL OR NONE BIDS. 2. SINCE GOVERNMENT ACTION DID NOT PRECLUDE SMALL BUSINESS PARTICIPATION IN SALE, CLAIM FOR BID PREPARATION COST IS DENIED.

DENNIS TICHE:

DENNIS TICHE (TICHE) PROTESTS GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BIDS (IFB) NO. WFBM-5-83-90 FOR THE SALE OF PRECIOUS METALS. TICHE CONTENDS THAT THE SIZE OF THE AGGREGATE LOT ITEMS IS UNREASONABLE AND EFFECTIVELY PRECLUDES SMALL BUSINESSES OR INDIVIDUALS FROM SUCCESSFULLY COMPETING.

WE DENY THE PROTEST.

THE IFB CONTAINED 47 LOTS OF VARIOUS TYPES OF PRECIOUS METALS FROM THREE VETERANS ADMINISTRATION (VA) SUPPLY DEPOTS AND THE UNITED STATES CUSTOMS SERVICE. FOLLOWING EACH GROUP OF ITEMS AT ONE LOCATION, THE BIDDING SCHEDULE CONTAINED A LINE ITEM FOR AN AGGREGATE BID FOR ALL LOTS AT THAT LOCATION. FOR EXAMPLE, LOTS 1-5 WERE FOR VARIOUS ITEMS OF GOLD AT THE VA DEPOT AT SOMERVILLE, NEW JERSEY, AND LOT 6 WAS FOR AN AGGREGATE BID ON LOTS 1-5. A BID DEPOSIT OF 20 PERCENT WAS REQUIRED.

BIDS WERE RECEIVED FROM 10 BIDDERS, EIGHT OF WHOM INDICATED THEY WERE SMALL BUSINESSES. FOUR DIFFERENT BIDDERS WERE SUCCESSFUL ON THE FOUR AGGREGATE LOTS. THE SUCCESSFUL BIDS ON THE FOUR AGGREGATE ITEMS RANGED FROM $256,041.42 TO $807,018.

TICHE CONTENDS THAT THE SIZE OF THE AGGREGATE LOTS, COUPLED WITH THE 20 PERCENT BID DEPOSIT REQUIREMENT, EFFECTIVELY PRECLUDE SMALL BUSINESSES AND INDIVIDUALS FROM COMPETING. TICHE ARGUES THAT GSA'S STRUCTURE OF THE INVITATION DID NOT COMPLY WITH CERTAIN PROVISIONS OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS, 41 C.F.R. SEC. 101-45.304 4 (1982), WHICH STATES, IN PART:

"*** DETERMINATION OF THE SIZE OF LOTS SHALL TAKE INTO CONSIDERATION THE BUYING CAPACITIES OF PROSPECTIVE BUYERS AND THE REQUIREMENT THAT ADEQUATE COMPETITION BE OBTAINED. LARGE QUANTITIES OF IDENTICAL ITEMS SHALL BE LOTTED IN SUCH A WAY AS TO ENCOURAGE BIDDING BY SMALL BUSINESSES AND INDIVIDUALS."

GSA ARGUES THAT SMALL BUSINESS PARTICIPATION WAS NOT IMPAIRED BASED ON THE RESULTS OF THE BIDDING. FURTHER, THE GROUPING OF THE AGGREGATE ITEMS BASED ON LOCATION WAS CONVENIENT FOR BIDDERS AND RESULTED IN HIGHER PRICES FOR THE GOVERNMENT RESULTING FROM THE SALES. MOREOVER, EVEN WITHOUT THE AGGREGATE ITEMS, THERE WAS NOTHING IN THE INVITATION TO PRECLUDE A BIDDER FROM BIDDING ON AN "ALL OR NONE BASIS."

OUR OFFICE HAS HELD THAT AN AGENCY'S DETERMINATION THAT THE GOVERNMENT'S ADVANTAGE LIES IN SINGLE, NOT MULTIPLE AWARDS, IS A MATTER FOR ADMINISTRATIVE DISCRETION, WHICH WE WILL NOT QUESTION AS LONG AS THE DECISION IS REASONABLY BASED. ROY'S RABBITRY, B-193628, MAY 2, 1979, 79-1 CPD 305. HERE, GSA HAD A LOGICAL BASIS FOR THE GROUPING OF ITEMS AND PERMITTING ALL OR NONE BIDS AND THE RECORD DOES NOT SHOW THAT SMALL BUSINESSES WERE HINDERED IN BIDDING.

THE PROTEST IS DENIED.

SINCE WE FIND THAT GOVERNMENT ACTION DID NOT PRECLUDE SMALL BUSINESSES OR INDIVIDUALS FROM PARTICIPATING IN THE BIDDING PROCESS, TICHE'S CLAIM FOR DAMAGES, INCLUDING BID PREPARATION COSTS AND ATTORNEY'S FEES, WHICH, IN ANY EVENT, WOULD BE LIMITED TO THE BID PREPARATION COSTS, IS DENIED. HUB TESTING LABORATORIES - CLAIM FOR COSTS, B-199368.3, JUNE 18, 1982, 82-1 CPD 602; AMERICAN SHIPBUILDING COMPANY, B-207218.2, NOVEMBER 9, 1982, 82-2 CPD 424.