B-154535, AUG. 28, 1964

B-154535, AUG. 28, 1964

TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 22, 1964, PROTESTING THE FAILURE OF THE UNITED STATES NAVY PURCHASING OFFICE TO FURNISH YOU WITH AN INVITATION TO BID ON IFB600-724-64-S, FOR THE PROCUREMENT OF FIXED STATIONS AND MOBILE UNITS, ISSUED BY THE ABOVE OFFICE ON MAY 6, 1964. REQUEST WAS ALSO MADE THAT YOU BE GIVEN AN OPPORTUNITY TO SUBMIT A BID, PARTICULARLY SINCE ONLY ONE BID WAS RECEIVED IN RESPONSE TO THE INVITATION.

WE HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF THE NAVY WHICH STATES IN PART AS FOLLOWS:

"INVITATION FOR BIDS 600-724-64-S, DATED 6 MAY 1964, COVERS THE PROCUREMENT OF A QUALITY OF FIXED STATION AND MOBILE RADIO TRANSMITTER AND RECEIVER UNITS, ANCILLARY EQUIPMENT AND REPAIR PARTS. THE PROPOSED PROCUREMENT WAS SYNOPSIZED AND PUBLISHED ON 10 APRIL 1964 IN THE UNITED STATES COMMERCE DEPARTMENT PUBLICATION "COMMERCE BUSINESS DAILY" IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION PARAGRAPH 1-1003.1 (A). THE IFB WAS MAILED ON 6 MAY 1964 BY NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON BEHALF OF THE BUREAU OF SHIPS, TO A BIDDERS LIST OF TWENTY-THREE (23) FIRMS. THE LIST INCLUDED PREVIOUS SUPPLIERS OF THE EQUIPMENT, GENERAL ELECTRIC COMPANY, MOTOROLA AND COMMUNICATIONS COMPANY, INC. THE IFB WAS ALSO MAILED TO THE SMALL BUSINESS ADVISORY SERVICE CENTER, SMALL BUSINESS ADMINISTRATION, 811 VERMONT AVENUE, N.W., WASHINGTON, D.C. 20416. SUPPLEMENTING THE ORIGINAL MAILING LIST OF 23 FIRMS, THE NAVY PURCHASING OFFICE ALSO FURNISHED BID SETS TO AN ADDITIONAL THIRTY THREE (33) FIRMS WHICH HAD REQUESTED SUCH BID SETS BY MAIL. THE OPENING DATE FOR THE IFB WAS 8 JUNE 1964. OF THE FIFTY-SIX (56) FIRMS TO WHOM BID SETS WERE FURNISHED, 26 FIRMS RETURNED "NO-BID" NOTICES PRIOR TO OPENING DATE; THREE "NO-BID" NOTICES HAVE BEEN RECEIVED SINCE THE OPENING DATE. THE BUREAU RECEIVED ONLY ONE BID, WHICH WAS FROM PRIOR PRODUCER COMMUNICATIONS COMPANY, INC. THIS BID IS CONFORMING AND OFFERS A FAIR AND REASONABLE PRICE AND THE BUREAU PROPOSES TO MAKE AWARD TO THAT COMPANY.

"BY LETTER DATED 16 JUNE 1964 (EIGHT DAYS AFTER OPENING DATE), MOTOROLA ADVISED THE BUREAU THAT THEY HAD RECENTLY LEARNED ABOUT THE IFB, AND THAT THE COMPANY HAD NOT RESPONDED TO THE INVITATION BECAUSE THEY ". . . WERE NOT SOLICITED AND WERE NOT AWARE OF ITS EXISTENCE.' THEY ALSO STATED THEY HAD "REASON TO BELIEVE THAT AT LEAST ONE OTHER COMPANY, WHO IN THE PAST HAS FILED RESPONSIVE BIDS (AND WHO HAS ALSO ON OCCASION RECEIVED AWARDS) WAS NOT SOLICITED IN THIS PARTICULAR TANCE.' MOTOROLA REQUESTED TO BE ALLOWED TO OFFER A BID UNDER THE IFB "IN ORDER TO ASSURE THE GOVERNMENT OF ADEQUATE COMPETITION.'

"BY LETTER DATED 22 JUNE 1964 (ENCLOSURE (1) ( THE BUREAU ADVISED MOTOROLA THAT IT COULD NOT BE AFFORDED SUCH OPPORTUNITY TO SUBMIT A BID FOR THE EQUIPMENT. THE BACKGROUND FACTS RELATING TO THE SOLICITATION WERE SET FORTH, SUBSTANTIALLY AS ABOVE. MOTOROLA WAS ADVISED THAT WITH RESPECT TO THE OTHER FIRM ALLUDED TO AS NOT HAVING BEEN SOLICITED (GENERAL ELECTRIC COMPANY), A REPRESENTATIVE HAD INFORMED THE BUREAU THAT, IN FACT, A BID PACKAGE HAD BEEN RECEIVED.

"GOVERNMENT RECORDS INDICATE THAT BID SETS WERE FURNISHED TO 56 FIRMS, OF WHICH 31 FIRMS, INCLUDING A PRIOR PRODUCER, ACKNOWLEDGED RECEIPT. IT IS CONSIDERED THAT THIS REPRESENTS FULL COMPLIANCE WITH PARAGRAPH 2-203.1 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH REQUIRES THAT INVITATIONS FOR BID ON ADVERTISED PROCUREMENTS BE MAILED OR DELIVERED "TO A SUFFICIENT NUMBER OF PROSPECTIVE BIDDERS.' THIS CONCLUSION IS IN NO WAY WEAKENED BY THE FACT THAT ONLY ONE BID WAS RECEIVED, SINCE THE BIDDER'S OFFER WAS MADE IN THE CONTEXT OF AN ADVERTISED COMPETITIVE PROCUREMENT ON EQUIPMENT WHICH HAD BEEN PROCURED PREVIOUSLY UNDER COMPETITIVE CONDITIONS IN WHICH THE BIDDER PARTICIPATED, AND THE BIDDER COULD NOT POSSIBLY HAVE BEEN AWARE THAT NO OTHER BIDS WOULD BE SUBMITTED.'

WHEN THERE DOES NOT APPEAR TO BE ANY INTENT OR PURPOSE ON THE PART OF THE ADMINISTRATIVE OFFICIALS TO PRECLUDE A PROSPECTIVE BIDDER FROM BIDDING, FAILURE TO FURNISH HIM WITH AN INVITATION TO BID IS NOT SUFFICIENT REASON FOR OUR OFFICE TO OBJECT TO THE AWARD OF A CONTRACT TO A RESPONSIVE BIDDER. 34 COMP. GEN. 684. THE FACT THAT ONLY ONE BID WAS RECEIVED, WHILE UNUSUAL, IS NOT FATAL, SINCE THE PRICES BID WERE CONSIDERED REASONABLE AND COMPARED FAVORABLY WITH PRIOR PURCHASES.

ACCORDINGLY, WE FIND NO PROPER LEGAL BASIS FOR OBJECTING TO AN AWARD BEING MADE IN THIS CASE.