B-159960, DEC. 8, 1966

B-159960, DEC. 8, 1966

TO INTERNATIONAL DEVELOPMENT COUNSELORS:

WE REFER TO YOUR LETTER DATED AUGUST 24, 1966, AND SUBSEQUENT CORRESPONDENCE, IN WHICH YOU PROTEST THE AWARD OF CONTRACTS FOR TRANSLATING, INTERPRETING AND TEACHING SERVICES TO FIRMS OTHER THAN INTERNATIONAL DEVELOPMENT COUNSELORS (IDC) UNDER INVITATION FOR BIDS NOS. AIII-31-001-66-117 (IFB 117) AND AIII-31-001-66-116 (IFB 116). ADDITIONALLY YOU PROTEST THE FAILURE OF ARMY PERSONNEL AT FORT BRAGG TO TIMELY HONOR YOUR REQUEST FOR BIDDING DOCUMENTS RELATED TO IFB NO. DABC 21 -67-B-0001 (IFB 001) WHICH RESULTED IN YOUR FAILURE TO SUBMIT A BID BEFORE THE TIME SET FOR BID OPENING.

WITH REGARD TO THE AWARD UNDER IFB 117 (THE FIRST IN CHRONOLOGICAL ORDER), THE RECORD INDICATED THAT BIDS WERE OPENED ON THE AFTERNOON OF JUNE 20, 1966, AND IDC'S BID WAS THE LOWEST RECEIVED. ON THE FOLLOWING DAY THE PROCUREMENT ASSISTANT AT FORT BRAGG, AFTER UNSUCCESSFULLY ATTEMPTING TO CONTACT YOU BY PHONE AT YOUR MANHATTAN BUSINESS ADDRESS, WAS ABLE TO CONTACT YOU BY PHONE AT YOUR HOME ADDRESS IN BROOKLYN. THE PROCUREMENT ASSISTANT ADVISED YOUR MR. GORDON THAT YOUR BID WAS LOW AND ALSO ADVISED OF THE REQUIREMENT IN THE PROCUREMENT REGULATIONS FOR A PRE- AWARD SURVEY FOR THE PURPOSE OF DETERMINING YOUR ABILITY TO PERFORM ON THE PROPOSED CONTRACT. ACCORDINGLY, THE PROCUREMENT ASSISTANT ASKED YOU TO SUBMIT CERTAIN INFORMATION NECESSARY FOR MAKING A DETERMINATION OF YOUR RESPONSIBILITY PURSUANT TO THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904. FURTHER, THE WRITTEN MEMORANDUM OF THIS PHONE CALL INDICATES THAT MR. GORDON WAS ADVISED OF AN URGENCY EXISTING WITH REGARD TO THIS PROCUREMENT IN THAT IT WAS IMPERATIVE FOR THE CONTRACT TO COMMENCE ON JULY 1. CONSEQUENTLY, THE ABOVE INFORMATION WAS REQUIRED TO BE SUBMITTED BY 12:00 NOON, JUNE 24. IT WAS ALSO STATED THAT A CONFIRMING TELEGRAM WOULD FOLLOW.

SINCE YOU FAILED TO SUBMIT ANY OF THE REQUESTED INFORMATION BY JUNE 24 THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM WAS NOT RESPONSIBLE FOR THE PURPOSES OF THIS CONTRACT. THIS DETERMINATION WAS MADE IN ACCORDANCE WITH THE PROVISIONS OF ASPR 1-902, WHICH REQUIRES A CONTRACTING OFFICER TO MAKE A DETERMINATION OF NONRESPONSIBILITY IF INFORMATION DOES NOT CLEARLY INDICATE THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. THEREAFTER AWARD WAS MADE TO THE NEXT LOW BIDDER WITHOUT REFERRING THE QUESTION OF YOUR RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA). IN THAT CONNECTION, IT SHOULD BE NOTED THAT REFERRAL IS NOT MANDATORY WHEN AWARD MUST BE MADE WITHOUT DELAY AND THE CONTRACTING OFFICER MAKES AN APPROPRIATE CERTIFICATION TO SUCH EFFECT. ASPR 1-705.4 (B) (I). 38 COMP. GEN. 248. THE REQUIRED CERTIFICATION WAS MADE IN THE INSTANT CASE.

THE RECORD FURTHER INDICATES THAT A TELEGRAPHIC CONFIRMATION OF THE PROCUREMENT ASSISTANT'S ORAL REQUEST OF JUNE 21 WAS SENT ON JUNE 22 TO YOUR MANHATTAN BUSINESS ADDRESS, ONE OF TWO ADDRESSES LISTED IN YOUR BID. IT WAS NOT DISCOVERED UNTIL JUNE 28 THAT THIS TELEGRAM DID NOT REACH YOUR FIRM, APPARENTLY BECAUSE OF A CHANGE IN YOUR OPERATIONAL NAME AT THAT ADDRESS AND THE FAILURE OF YOUR LANDLORD TO MAKE AN APPROPRIATE CHANGE IN THE BUILDING DIRECTORY.

YOUR PROTEST CONCERNING THIS PROCUREMENT IS MADE ON THE GROUND THAT THE CONTRACTING OFFICER'S AWARD TO THE SECOND LOWEST BIDDER WAS IMPROPER SINCE IDC WAS DENIED AN OPPORTUNITY TO QUALIFY. MOREOVER, YOU MAINTAIN THAT THE CONFIRMING TELEGRAM SHOULD HAVE BEEN SENT TO YOUR BROOKLYN ADDRESS WHERE YOU HAD PREVIOUSLY BEEN CONTACTED BY PHONE.

WITH RESPECT TO THE CONTRACTING AGENCY'S FAILURE TO SEND THE CONFIRMING TELEGRAM TO YOUR HOME IN BROOKLYN, WE ARE UNABLE TO CONCLUDE THAT THE FAILURE OF THE PROCUREMENT ASSISTANT TO CONTACT YOU BY TELEPHONE AT YOUR MANHATTAN BUSINESS ADDRESS, AND HER SUBSEQUENT SUCCESS IN CONTACTING YOU BY TELEPHONE AT YOUR HOME, CONSTITUTED NOTICE THAT TELEGRAPHIC CONFIRMATION WOULD NOT BE DELIVERED AT YOUR MANHATTAN BUSINESS ADDRESS, OR IMPOSED ANY OBLIGATION ON THE PROCURING ACTIVITY TO ADDRESS FUTURE CORRESPONDENCE TO YOUR HOME ADDRESS. OUR REVIEW OF THE CIRCUMSTANCES INVOLVED IN THIS CASE DOES NOT INDICATE THAT THE HANDLING OF THE MATTER AT THE PROCURING ACTIVITY WAS OTHER THAN IN GOOD FAITH, AND IN THE ABSENCE OF KNOWLEDGED BY THE CONTRACTING OFFICER THAT DELIVERY OF THE CONFIRMING TELEGRAM WAS NOT EFFECTED AT YOUR MANHATTAN ADDRESS WE CANNOT AGREE THAT THERE WAS ANY OBLIGATION TO SEND A CONFIRMING TELEGRAM TO YOUR BROOKLYN ADDRESS, OR TO HOLD UP AWARD BEYOND THE JUNE 24 DATE OF WHICH YOU WERE ORALLY ADVISED BY THE PROCUREMENT ASSISTANT ON JUNE 21. IN ANY EVENT, THE RECORD ESTABLISHES THAT YOU HAD ACTUAL NOTICE OF THE INFORMATION CONTAINED IN THE TELEGRAM SINCE THAT TELEGRAM WAS MERELY A CONFIRMATION OF THE DETAILED ADVICE GIVEN YOU ON JUNE 21 BY THE PROCUREMENT ASSISTANT. THE NON-RECEIPT OF THE TELEGRAM, THEREFORE, CANNOT BE DEEMED A SUFFICIENT REASON TO EXCUSE YOUR FAILURE TO TIMELY SUBMIT THE INFORMATION NECESSARY TO ESTABLISH YOUR RESPONSIBILITY. IN THE CIRCUMSTANCES, WE CANNOT AGREE WITH YOUR CONTENTION THAT IDC WAS DENIED AN OPPORTUNITY TO QUALIFY UNDER IFB 117, AND YOUR PROTEST AGAINST THE AWARD MADE UNDER THE INVITATION MUST THEREFORE BE DENIED.

IFB 116 SOLICITED BIDS TO FURNISH SERVICES FOR VIETNAMESE LANGUAGE INSTRUCTION AT THE SPECIAL WELFARE SCHOOL, FORT BRAGG, DURING THE PERIOD JULY 22, 1966 (OR DATE OF AWARD, IF LATER) THROUGH JULY 21, 1967. BIDS WERE OPENED ON JUNE 24, 1966, AND YOUR BID OF $126,735 WAS THE LOWEST RECEIVED. THE GOVERNMENT'S ESTIMATE FOR THIS PROCUREMENT WAS $170,000 AND THE FIVE OTHER BIDS RECEIVED RANGED FROM $151,725 TO $169,118. THE CONTRACTING OFFICER WAS OF THE OPINION THAT IDC'S BID WAS LOW TO THE EXTENT THAT A POSSIBILITY OF ERROR EXISTED. ACCORDINGLY, ON THE FOLLOWING DAY A TELEGRAM WAS DISPATCHED, AGAIN TO YOUR MANHATTAN BUSINESS ADDRESS, WHICH REQUESTED A VERIFICATION OF YOUR BID AND THE SUBMISSION OF ENUMERATED DATA INDICATING YOUR FIRM'S RESPONSIBILITY. A CONFIRMING LETTER WAS ALSO SENT TO YOUR MANHATTAN ADDRESS ON JUNE 27 AND ON THE SAME DATE THE CONTRACTING OFFICER WAS TWICE UNSUCCESSFUL IN REACHING YOU BY TELEPHONE AT EITHER YOUR MANHATTAN NUMBER (WHERE YOUR ANSWERING SERVICE TOOK A "LEAVE WORD") OR AT YOUR BROOKLYN NUMBER. ON THE FOLLOWING DAY YOUR MR. GORDON RETURNED THESE CALLS AND LEARNED THAT IDC WAS THE LOWEST BIDDER ON IFB 116, AND THAT CORRESPONDENCE FROM FORT BRAGG WAS NOT BEING DELIVERED TO YOUR MANHATTAN ADDRESS. ACCORDINGLY, THE TELEGRAM OF JUNE 25 WAS READ TO MR. GORDON, THEREBY GIVING NOTICE OF THE PROCURING ACTIVITY'S REQUEST FOR A VERIFICATION OF YOUR BID, A CURRENT FINANCIAL STATEMENT, CREDIT REFERENCES, LIST OF EMPLOYEES REQUIRED BY SPECIAL PROVISION 16 OF THE IFB, AND A LIST OF SIMILAR PRIOR CONTRACTS.

ON JULY 1 MR. GORDON APPEARED PERSONALLY AT FORT BRAGG WITH THE REQUESTED INFORMATION. HOWEVER, THE CONTRACTING OFFICER THEREAFTER REQUESTED YOU TO SUBMIT ADDITIONAL EVIDENCE TO SUBSTANTIATE YOUR ALLEGATION OF MISTAKE IN BID. THE ORIGINAL WORKSHEET, TOGETHER WITH A COST BREAKDOWN OF YOUR PROPOSED BID (WHICH INCLUDED A SWORN STATEMENT BY MR. GORDON THAT AN ERROR HAD BEEN MADE), WAS SUBSEQUENTLY SUBMITTED ON JULY 7 FOR THE PURPOSE OF ESTABLISHING THE EXISTENCE OF AN ERROR, THE MANNER IN WHICH IT OCCURRED, AND THE BID ACTUALLY INTENDED.

THEREAFTER, THE CONTRACTING OFFICER MADE AN AWARD TO THE SECOND LOW BIDDER AFTER FIRST DETERMINING THAT IDC FAILED TO ESTABLISH ITS INTENDED BID AND THAT ACCEPTANCE OF THE INCORRECT BID WOULD BE UNFAIR TO IDC AND TO OTHER BONA FIDE BIDDERS. ADDITIONALLY IT WAS DETERMINED THAT IDC FAILED TO MEET THE MINIMUM STANDARDS OF RESPONSIBILITY FOR PROSPECTIVE CONTRACTORS FOR THE REASON, AMONG OTHERS, THAT THE DATA FURNISHED DID NOT INDICATE ANY RECORD OF PERFORMANCE OF CONTRACTS OF SIMILAR NATURE AND SCOPE. AT THIS TIME IT WAS FURTHER DETERMINED THAT AN AWARD UNDER THE SUBJECT INVITATION MUST BE MADE NO LATER THAN JULY 8TO ALLOW TIME FOR NECESSARY PREPARATION OF THE SUCCESSFUL CONTRACTOR AND NECESSARY COORDINATION BETWEEN THE CONTRACTOR AND THE GOVERNMENT. SERVICES WERE REQUIRED TO BEGIN ON A SCHEDULED DATE TO PROVIDE LANGUAGE INSTRUCTION TO STUDENTS SCHEDULED FOR OVERSEAS ASSIGNMENTS.

YOUR PROTEST CONCERNING THIS PROCUREMENT IS MADE ON THE GROUNDS THAT THE CONTRACTING OFFICER'S DETERMINATION, THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER, IS ARBITRARY AND CAPRICIOUS. YOU FURTHER ALLEGE THAT ADDITIONAL TIME FOR SUBMITTING THE REQUIRED DATA SHOULD HAVE BEEN ALLOWED.

WITH REGARD TO THE ISSUE OF YOUR MISTAKE IN BID WE NOTE THAT THE WORKSHEET AND COST EVALUATION SUBMITTED ON JULY 7 CONFLICT WITH YOUR BID AS ORIGINALLY SUBMITTED IN THAT THESE RECORDS SHOW YOUR CALCULATIONS TO BE $126,000 WHEREAS THE BID ACTUALLY SUBMITTED WAS $126,735. IN VIEW THEREOF WE DO NOT BELIEVE THAT THE WORKSHEETS MAY BE ACCEPTED AS ESTABLISHING THAT YOUR BID PRICE WOULD HAVE BEEN $146,000 IN THE ABSENCE OF ERROR. SEE 17 COMP. GEN. 575 WHERE WE HELD THAT A BID MAY NOT BE CORRECTED IF THERE IS ANY DOUBT AS TO THE CORRECTED BID PRICE.

SINCE YOU HAVE ALLEGED THAT AN ERROR WAS MADE IN YOUR BID (WHICH APPEARS TO BE CONFIRMED BY THE WIDE DISPARITY BETWEEN YOUR BID AS SUBMITTED AND THE OTHER BIDS SUBMITTED AND THE GOVERNMENT ESTIMATE), BUT HAVE NOT SATISFACTORILY ESTABLISHED THE CORRECTED BID PRICE, THE CONTRACTING OFFICER PROPERLY REFUSED TO MAKE AN AWARD TO YOUR FIRM AT EITHER THE CORRECTED BID PRICE OF $146,000 OR THE ORIGINAL BID AS SUBMITTED. SEE 42 COMP. GEN. 723, WHEREIN WE HELD UNDER SIMILAR CIRCUMSTANCES THAT WHERE A BIDDER HAS ALLEGED AND ESTABLISHED THAT AN ERROR HAS BEEN MADE IN HIS BID, AND PERMISSION HAS BEEN GRANTED TO WITHDRAW BUT NOT CORRECT THE BID, THE BIDDER MAY NOT RECEIVE AWARD ON THE BASIS OF THE ORIGINAL BID.

CONCERNING YOUR OBJECTIONS TO THE CONTRACTING OFFICER'S DETERMINATION THAT IDC FAILED TO MEET THE MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS WE NOTE THAT THE CONTRACTING OFFICER WAS OF THE OPINION THAT THE LIST OF PREVIOUS CONTRACTS SUBMITTED BY IDC DID NOT INDICATE EXPERIENCE IN WORK OF SIMILAR NATURE AND SCOPE TO THE SUBJECT PROCUREMENT. ALTHOUGH DATA SUBMITTED BY YOUR MR. GORDON INDICATES EXPERIENCE IN INSTRUCTIONAL SERVICES FOR WATCH REPAIRING, JEWELRY MAKING, TYPING, SHORTHAND, COMPTOMETRY, BOOKKEEPING, ENGLISH AND SPANISH, HE FAILED TO INDICATE PRIOR EXPERIENCE IN FOREIGN LANGUAGE INSTRUCTIONAL SERVICES OF A SCOPE COMPARABLE TO THE REQUIREMENTS OF THE SUBJECT PROCUREMENT. THEREFORE WE BELIEVE THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS REASONABLY BASED ON THE DATA SUBMITTED BY YOUR FIRM ON JULY 1, AND WE CANNOT CONCLUDE THAT SUCH DETERMINATION WAS ARBITRARY OR CAPRICIOUS. WITH RESPECT TO YOUR CONTENTION THAT ADDITIONAL TIME SHOULD HAVE BEEN ALLOWED FOR SUBMITTING THE REQUIRED DATA, IN VIEW OF THE DETERMINATION OF URGENCY MADE ON JULY 8, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION. HOWEVER, WE HAVE RECOMMENDED TO THE SECRETARY OF THE ARMY THAT APPROPRIATE STEPS BE TAKEN IN FUTURE PROCUREMENTS OF THESE SERVICES TO PERMIT THE EVALUATION OF BIDDER'S RESPONSIBILITY ON A NON- URGENT BASIS.

CONCERNING YOUR OBJECTION TO THE PROCURING ACTIVITY'S FAILURE TO TIMELY HONOR YOUR REQUEST FOR DOCUMENTS RELATED TO IFB 001, THE RECORD INDICATES THAT IDC WAS NOT LISTED ON FORT BRAGG'S BIDDERS' LIST AND THAT YOUR REQUEST FOR DOCUMENTS WAS RECEIVED AT FORT BRAGG ON JULY 8. IN VIEW THEREOF, AND SINCE THE REQUESTED DOCUMENTS WERE MAILED TO YOU ON THE DATE YOU REQUEST WAS RECEIVED AT THE ACTIVITY WE FAIL TO SEE ANY VALID BASIS FOR CONCLUDING THAT THE HANDLING OF THIS MATTER AT THE PROCURING ACTIVITY WAS IMPROPER.