B-164047, JUN. 10, 1968

B-164047, JUN. 10, 1968

TO AUTOMATION ELECTRIC:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED APRIL 16, 1968, WITH ENCLOSURES, PROTESTING THE AWARD UNDER INVITATION FOR BIDS NO. F04606-68-B-0308, ISSUED BY THE SACRAMENTO MATERIEL AREA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, MCCLELLAN AIR FORCE BASE, CALIFORNIA. YOU CONTAND THAT INSUFFICIENT TIME WAS ALLOWED TO PERMIT PROPER BIDDING AND THAT YOUR FIRM WAS THEREBY PRECLUDED FROM SUBMITTING A BID WITHIN THE PRESENTED TIME. IN SUPPORT OF YOUR CONTENTION, YOU ALLEGE THAT THERE WAS (1) A DELAY IN SYNOPSIS NOTICE, (2) DELAY IN RECEIPT OF BID SETS AND DRAWINGS, AND (3) ILLEGIBLE DRAWINGS.

THE INVITATION WAS ISSUED ON MARCH 26, 1968, FOR REPLENISHMENT SPARES, VOLTAGE SENSOR ASSEMBLIES APPLICABLE TO THE MB 15, 16, 17, 18 AND 19 (MB TEEN) GENERATOR SETS, FSN 6110 943 2622YV. ORIGINALLY, THE PROCUREMENT WAS CODED FOR DIRECT PURCHASE FROM THE MANUFACTURER SINCE THERE WAS INVOLVED TECHNICAL EQUIPMENT REQUIRING STANDARDIZATION AND INTERCHANGEABILITY OF ITS PARTS IN THE PUBLIC INTEREST. PROCUREMENT BY SOLE SOURCE NEGOTIATION HAD HERETOFORE BEEN NECESSARY TO INSURE STANDARDIZATION. HOWEVER, THE GOVERNMENT BUYER HAD KNOWLEDGE THAT REPROCUREMENT DATA HAD BEEN PROCURED FROM THE PREVIOUS END-ITEM GENERATOR SET MANUFACTURER. THE PURCHASE REQUEST WAS IDENTIFIED SEA AS AN URGENT SOUTHEAST ASIA PROCUREMENT.

ON MARCH 28, 1968, THE PROCUREMENT WAS SYNOPMIZED AND INVITATIONS WERE FORWARDED TO 32 SOURCES SELECTED BY COMODITY CODE AND BY ROTATION, IN ACCORDANCE WITH ESTABLISHED PROCEDURES, FROM THE MECHANIZED BIDDER LIST. YOUR COMPANY WAS NOT AMONG THOSE SOLICITED. NOTIFICATION OF THE PROPOSED PROCUREMENT APPEARED IN THE APRIL 4, 1968, ISSUE OF THE COMMERCE BUSINESS DAILY. YOU STATE THAT YOU DID NOT RECEIVE IT UNTIL APRIL 6, 1968, WHEN YOU REQUESTED A BID SET. BID OPENING DATE WAS APRIL 16, 1968. YOU THEREFORE REQUEST THAT THE PROCUREMENT BE "REOPENED FOR BIDDING" TO ENABLE YOU TO SUBMIT A BID.

IN ADDITION TO THE 32 SOURCES ORIGINALLY SELECTED, 14 BID SETS WERE SENT AT THE REQUEST OF INDIVIDUAL FIRMS THAT LEARNED OF THE PROCUREMENT EITHER IN COMMERCE BUSINESS DAILY OR FROM PUBLIC POSTINGS. A TOTAL OF 7 BIDS WERE RECEIVED INCLUDING ONE FROM A FIRM NOT ON THE MECHANIZED BIDDERS LIST; 5 OF THESE BIDS WERE CONSIDERED FULLY RESPONSIVE.

A 20-DAY BID OPENING DATE WAS ESTABLISHED, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.1, DUE TO THE FACT THAT THE ITEM IS URGENT (IN SUPPORT OF SOUTHEAST ASIA) AND THE FACT THAT THE ITEM IS RECOGNIZED AS HAVING COMMERCIAL OR MODIFIED COMMERCIAL APPLICATION.

ASPR 2-202.1 PROVIDES IN PART: "* * * AS A GENERAL RULE, BIDDING TIME SHALL NOT BE LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THEN STANDARD COMMERCIAL ARTICLES OR SERVICES. THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES, * * * OR WHEN THE URGENCY FOR THE SUPPLIES OR SERVICES DOES NOT PERMIT SUCH DELAY * * *.'

SINCE YOU WERE NOT INCLUDED ON THE BIDDER'S LISTS, YOU OBTAINED THE BID INFORMATION FROM THE COMMERCE BUSINESS DAILY ISSUED BY THE U.S. DEPARTMENT OF COMMERCE. THE PROCUREMENT NOTIFICATION APPEARED IN APRIL 4, 1968, ISSUE OF THE DAILY WHICH YOU STATE YOU RECEIVED ON APRIL 6, 1968. YOUR REQUEST FOR BID SET WAS MAILED ON APRIL 6, 1968, TO THE CONTRACT AND PURCHASING DEPARTMENT, MCCLELLAN AIR FORCE BASE, CALIFORNIA, BUT WAS NOT DIRECTED IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED IN THE NOTIFICATION OF APRIL 4 THAT: "REQUESTS FOR BID SETS SHOULD BE DIRECTED TO: ATTN: SMPIOA-5.'

THE FACT THAT YOU FAILED TO INDICATE THE ATTENTION LINE IN THE ADDRESS, DELAYED RECEIPT OF YOUR REQUEST BY THE CORRECT PROCUREMENT OFFICE BY AS SUCH AS 1 DAY SINCE PROCUREMENTS ARE SEGREGATED AT THIS AIR MATERIEL AREA INTO TWO BUILDINGS WHICH ARE APPROXIMATELY ONE QUARTER MILE APART. HOWEVER, A BID SET WAS FORWARDED TO YOU ON APRIL 9 VIA REGULAR MAIL, IN ACCORDANCE WITH EXISTING BASE POLICY TO FORWARD MAIL WITHIN CALIFORNIA AS REGULAR MAIL, EVEN THOUGH YOU HAD REQUESTED AIRMAIL SERVICE. WE ARE ADVISED THAT REGULAR MAIL FROM THE BASE IS FORWARDED VIA AIRMAIL ON A SPACE-AVAILABLE BASIS. THE POST OFFICE ADVISES THAT APPROXIMATELY 90 PERCENT OF FIRST-CLASS MAIL WITHIN CALIFORNIA IS AIR-LIFTED AND ARRIVES THE SAME DAY AS POSTED TO THE LOS ANGELES AREA FOR DISTRIBUTION IN SOUTHERN CALIFORNIA. ADMINISTRATIVE RECORDS INDICATE A COMPLETE BID SET, INCLUDING DATE, WAS FORWARDED TO YOU.

WHILE YOU ALSO ALLEGE THAT THE DRAWINGS WERE OF "--EXTREME POOR QUALITY," WE ARE ADVISED THAT NO GENERAL COMPLAINTS WERE RECEIVED FROM SOURCE-LIST FIRMS OR RESPONDING FIRMS AS TO THE QUALITY OF THE BID DATA.

WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE PROSPECTIVE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. 147515, JANUARY 12, 1962.

ALTHOUGH IT IS REGRETABLE THAT YOUR FIRM DID NOT RECEIVE A BID SET IN SUFFICIENT TIME TO PREPARE AND SUBMIT A BID PURSUANT TO THE TERMS AND CONDITIONS OF THE INVITATION, THERE IS NO INDICATION IN THE RECORD THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER INTERESTED FIRM FROM PARTICIPATING IN THE PROCUREMENT. IN THE ABSENCE OF SUCH INTENT OR PURPOSE, AN INADVERTENT FAILURE TO FURNISH TIMELY A COPY OF AN INVITATION TO A PARTICULAR SUPPLIER DOES NOT CONSTITUTE, IN OUR OPINION, A SUFFICIENT BASIS TO CANCEL THE INVITATION OR TO QUESTION ON OTHERWISE PROPER AWARD UNDER THE INVITATION. CF. 34 COMP. GEN. 684, B-161241, MAY 8, 1967.