B-145130, MAR. 16, 1961

B-145130, MAR. 16, 1961

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1961, IN REGARD TO THE PROTEST OF GOODWAY PRINTING COMPANY, INC., AGAINST THE ALLEGEDLY IMPROPER PRACTICES EMPLOYED IN THE AWARD OF A CONTRACT PURSUANT TO INVITATION NO. 04-607-61-17 ISSUED BY SAN BERNARDINO AIR MATERIEL AREA, NORTON AIR FORCE BASE, CALIFORNIA, ON SEPTEMBER 30, 1960.

THE INVITATION REQUESTED BIDS--- TO BE OPENED 2 P.M., OCTOBER 14, 1960--- FOR PERFORMING VARIOUS ITEMS OF PRINTING AND BINDING SERVICES DURING THE PERIOD FROM OCTOBER 26, 1960, THROUGH OCTOBER 25, 1961. AWARD WAS TO BE MADE ON THE BASIS OF "BIDDING ON ALL" OF THE ITEMS LISTED IN THE INVITATION. AWARD OF THE CONTRACT WAS MADE TO THE LOS ANGELES LITHOGRAPH COMPANY, INC., ON NOVEMBER 2, 1960, PRIOR TO THE LETTER OF PROTEST DATED NOVEMBER 11, 1960, FROM THE GOODWAY PRINTING COMPANY.

THE STATEMENTS OF THE CONTRACTING OFFICER AND THOSE OF GOODWAY ARE NOT ENTIRELY IN AGREEMENT AS TO WHAT TRANSPIRED PRIOR TO THE OPENING OF BIDS. IT IS INDICATED, HOWEVER, THAT THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM GOODWAY ON SEPTEMBER 26, 1960, AT WHICH TIME GOODWAY STATED THAT IT WAS INTERESTED IN RECEIVING COPIES OF THE FORTHCOMING INVITATION FOR THE 1961 PRINTING REQUIREMENTS AND THAT IT WOULD OPEN UP A PLANT IN THE LOS ANGELES AREA IF IT GOT AN AWARD. UNDER THESE CIRCUMSTANCES IT WAS DECIDED NOT TO SEND AN INVITATION TO GOODWAY AS BIDDING WAS TO BE RESTRICTED TO FIRMS HAVING EXISTING PLANTS IN THE LOS ANGELES AREA. THE CONTRACTING OFFICE DID NOT RECEIVE ANY COMMUNICATION FROM GOODWAY THEREAFTER UNTIL IT RECEIVED A TELEPHONE CALL AT ABOUT 10 A.M. ON OCTOBER 14, 1960, FROM MR. WOLK OF GOODWAY. MR. WOLK STATED THAT GOODWAY WOULD OBTAIN A PLANT IN THE LOS ANGELES AREA IF IT WAS SUCCESSFUL IN RECEIVING AN AWARD UNDER THE INSTANT INVITATION. THE CONTRACTING OFFICER EXPLAINED TO MR. WOLK THAT HIS OFFICE COULD NOT SEND COPIES OF THE INVITATION TO CONCERNS OUTSIDE OF THE LOS ANGELES AREA AS THE REQUIREMENTS OF THE USING OFFICE (BALLISTIC MISSILE DIVISION) SOMETIMES NECESSITATED PRINTING AND DELIVERY OF AN ORDER WITHIN A PERIOD OF SIX HOURS. IT IS NOTED, HOWEVER, THAT PART II OF THE SCHEDULE OF SUPPLIES PROVIDES THAT COMPLETION AND DELIVERY OF AN ORDER MIGHT BE REQUIRED IN ONE DAY. MR. WOLK REQUESTED THAT THE TIME FOR OPENING OF BIDS BE EXTENDED AND STATED THAT HE WOULD SEND A REPRESENTATIVE TO SECURE A COPY OF THE INVITATION FOR BIDS. IT WAS EXPLAINED TO MR. WOLK THAT SINCE THE OPENING TIME WAS LESS THAN FOUR HOURS AWAY AND SINCE BIDDERS OF OTHER REPRESENTATIVES WERE ALREADY ON THEIR WAY TO THE CONTRACTING OFFICE IT WAS NOT FEASIBLE TO DELAY THE OPENING OF BIDS. A REPRESENTATIVE OF GOODWAY ARRIVED AT THE CONTRACTING OFFICE AT ABOUT 1:20 P.M. ON OCTOBER 14 AND HE WAS FURNISHED WITH A DESK AND TELEPHONE FOR FILLING OUT THE BID FORM. THE BID WAS HANDED TO THE CONTRACTING OFFICER IN TIME FOR THE OPENING OF BIDS BUT IT WAS DECLARED NONRESPONSIVE ALONG WITH TWO OTHER BIDS BECAUSE OF A FAILURE TO QUOTE ON ALL ITEMS.

IT IS CONTENDED BY THE ATTORNEYS FOR GOODWAY THAT THE PROCUREMENT OFFICIALS HAVE "ACTED ARBITRARILY AND WITHOUT DISCRETION SINCE IT WAS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT TO ALLOW GOODWAY TO SUBMIT A BID.' ALSO, IT IS CONTENDED THAT "THE BID OF GOODWAY MUST BE CONSIDERED IN THE SAME LIGHT AS THE GOVERNMENT WOULD HAVE CONSIDERED IT HAD IT BEEN A MAILED BID MISHANDLED BY THE GOVERNMENT BECAUSE IN THE INSTANT CASE THERE WAS DEFINITE MISHANDLING ON THE PART OF THE GOVERNMENT.' IN SUPPORT OF THE LATTER CONTENTION REFERENCE IS MADE TO THE PROVISIONS OF SECTION 2- 303.2 OF ASPR WHICH OUTLINE THE CONDITIONS UNDER WHICH LATE BIDS MAY BE CONSIDERED FOR AWARD.

THE RECORD IS NOT CLEAR AS TO WHETHER THE CONTRACTING OFFICE OR GOODWAY WAS RESPONSIBLE FOR THE FAILURE OF GOODWAY TO RECEIVE AN INVITATION FOR BIDS IN TIME FOR IT TO SUBMIT A PROPER BID. ALTHOUGH ITIS ALLEGED IN BEHALF OF GOODWAY THAT IT WAS ON THE BIDDERS' LIST, IT IS REPORTED BY THE CONTRACTING OFFICER THAT A REVIEW OF THE LISTS AT THE SAN BERNARDINO AIR MATERIEL AREA, THE AF BALLISTIC MISSILE DIVISION AT INGLEWOOD AND THE LIST FORWARDED FROM THE LONG BEACH AFB PROCUREMENT OFFICE WITH THE PREVIOUS CONTRACT FILE DOES NOT DISCLOSE THAT GOODWAY WAS ON ANY OF THE BIDDERS' LISTS. IT IS REPORTED ALSO THAT GOODWAY WAS NEVER ADVISED BY ANY REPRESENTATIVE OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION OF THE SAN BERNARDINO AIR MATERIEL AREA, NOR BY ANY KNOWN AIR FORCE PROCUREMENT OFFICIAL, THAT ITS NAME WOULD BE ADDED TO ANY BIDDERS' LIST. THUS, ON THE ONE HAND, GOODWAY DID NOT PROCEED IN A TIMELY AND PROPER WAY TO GET ITS FIRM LISTED AS A POTENTIAL SOURCE FOR PRINTING SERVICES IN THE AREA INVOLVED SO THAT CONTRACTING OFFICERS COULD AVAIL THEMSELVES OF THIS INFORMATION WHEN SOLICITING BIDS. ON THE OTHER HAND, THE "ABILITY TO OBTAIN" FACILITIES FOR PERFORMING THE REQUIRED SERVICES MAY BE CONSIDERED BY THE CONTRACTING OFFICER UNDER SECTION 1-903.3 OF ASPR AS OF TIME OF AWARD. IN REGARD TO THE PROVISIONS OF ASPR REGARDING THE CONSIDERATION OF LATE BIDS FOR AWARD CITED IN SUPPORT OF GOODWAY'S CONTENTIONS, THERE IS NOT INVOLVED HERE ANY LATE BID SINCE A BID WAS SUBMITTED BY GOODWAY IN TIME BUT IT WAS NONRESPONSIVE BECAUSE IT FAILED TO QUOTE ON ALL THE ITEMS. THE CONTRACTING OFFICER WAS NOT REQUIRED TO EXTEND THE OPENING DATE OF THE BIDS AND IN VIEW OF THE CIRCUMSTANCES REPORTED BY HIM THE FAILURE TO SO EXTEND THE OPENING DATE CANNOT BE REGARDED AS BEING IMPROPER. THE ACTION OF THE CONTRACTING OFFICER, HOWEVER, IN REFUSING ON SEPTEMBER 26, 1960, TO FURNISH GOODWAY AN INVITATION WAS IMPROPER AS ANY QUESTION ASTO ITS "ABILITY TO OBTAIN, FACILITIES COULD HAVE BEEN DETERMINED LATER UNDER THE PROVISIONS OF SECTION 1-903.3 OF ASPR AND IT IS STATED THAT YOUR DEPARTMENT INTENDS TO TAKE APPROPRIATE ACTION TO PREVENT SIMILAR MISTAKES IN THE FUTURE AT THE SAN BERNARDINO AIR MATERIAL AREA.

IN THIS CASE BIDS WERE RECEIVED FROM EIGHT BIDDERS AND THUS A SUBSTANTIAL AMOUNT OF COMPETITION WAS RECEIVED. OVER ONE-THIRD OF THE CONTRACT PERIOD HAS NOW ELAPSED. ANY CANCELLATION AND SUBSEQUENT READVERTISEMENT WOULD RESULT IN ADDITIONAL EXPENSE TO THE GOVERNMENT. FOR THESE REASONS AND THE FACT THAT THE PROTESTING BIDDER WAS NOT ENTIRELY WITHOUT FAULT IN THE MATTER IN THAT IT FAILED TO MAKE TIMELY APPLICATION TO BE PLACED ON THE BIDDERS' LIST WE AGREE WITH YOUR RECOMMENDATION THAT THE CONTRACT AWARDED IN THIS CASE SHOULD NOT BE CANCELED.