B-166291, APR. 16, 1969

B-166291, APR. 16, 1969

TO MRS. M. ASHLEY DICKERSON:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1969, PROTESTING, ON BEHALF OF CLEAN-RITE, C., AND MARWAN MAINTENANCE AND JANITORIAL SERVICE, THE PROPOSED AWARDS OF CONTRACTS TO SPIC AND SPAN SERVICE AND MAIL MESSENGER SERVICE UNDER FORT RICHARDSON, ALASKA, PURCHASING AND CONTRACTING DIVISION INVITATION FOR BIDS DAFA03-69-B-0026.

THE INVITATION, ISSUED DECEMBER 23, 1968, SOLICITED BIDS FOR CUSTODIAL SERVICES IN 28 BUILDINGS AT FORT RICHARDSON AND ADVISED PROSPECTIVE BIDDERS THAT MULTIPLE AWARDS MIGHT BE MADE UNDER THE INVITATION AT THE DISCRETION OF THE CONTRACTING OFFICIALS.

BIDS WERE OPENED ON JANUARY 23, 1969, AND IT WAS DETERMINED THAT THE LOWEST RESPONSIVE BIDS WERE SUBMITTED BY SPIC AND SPAN SERVICE AND MAIL MESSENGER SERVICE. THEREAFTER, ON JANUARY 24, 1969, YOUR CLIENTS (CLEAN- RITE AND MARWAN) PROTESTED TO THE CONTRACTING OFFICER THAT THE RECENT RELATIONSHIP AND ACTIONS OF THE OWNERS OF THE TWO LOW BIDDERS EVIDENCED COLLUSIVE BIDDING ON THEIR PART IN VIOLATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. SPECIFICALLY, AS OUTLINED IN YOUR LETTER OF FEBRUARY 26, MR. HENRY BURTON, OWNER OF MAIL MESSENGER SERVICE, WAS AT LEAST UNTIL DECEMBER 15, 1968, A PARTNER OF MR. FRED ZIMMERMAN, OWNER OF SPIC AND SPAN SERVICE, AND, AS SUCH, CO-OWNER OF THAT FIRM. YOU CONTINUE, THE TWO ABOVE-NAMED PERSONS ARE PRESENTLY PERFORMING CERTAIN CONTRACTS TOGETHER AND THAT THE FIRST INDICATION OF THE DISSOLUTION OF THEIR PARTNERSHIP WAS NOT GIVEN UNTIL JANUARY 27, 1969, THREE DAYS AFTER YOUR CLIENTS PROTESTED TO THE CONTRACTING OFFICER. FURTHER EVIDENCE OF THE CURRENT PARTNERSHIP STATUS OF MESSRS. BURTON AND ZIMMERMAN IS THAT AT A PRE-BID CONFERENCE HELD AT FORT RICHARDSON ON JANUARY 15, 1969, MR. ZIMMERMAN SIGNED MR. BURTON'S NAME TO THE LIST OF PERSONS PLANNING TO SUBMIT BIDS.

SUBSEQUENT TO RECEIPT OF YOUR CLIENTS' PROTEST TO THE CONTRACTING OFFICER, THE COGNIZANT OFFICIALS AT THE PROCURING ACTIVITY CONVENED A PREAWARD SURVEY REVIEW BOARD TO CONSIDER ALL OF THE EVIDENCE THAT ANY OF THE INTERESTED PARTIES MIGHT WISH TO PRESENT RELATIVE TO THE ALLEGATION OF COLLUSIVE BIDDING BY MESSRS. BURTON AND ZIMMERMAN. THE BOARD DETERMINED AFTER HEARING TESTIMONY FROM ALL INTERESTED PARTIES DURING THE PERIOD FEBRUARY 18 THROUGH FEBRUARY 24, 1969, THAT: "A. THE PARTNERSHIP OF BURTON AND ZIMMERMAN, D.B.A. SPIC AND SPAN, WAS DISSOLVED ON 15 DECEMBER 1968. "B. THERE IS NO EVIDENCE TO PROVIDE EVEN A REASON TO BELIEVE THAT BIDS OF BURTON AND ZIMMERMAN WERE COLLUSIVE.'

PREDICATED ON THESE FINDINGS AND IN VIEW OF THE FACT THAT A SIGNIFICANT MONETARY SAVINGS TO THE GOVERNMENT WOULD BE REALIZED BY MAKING A PROMPT AWARD, THE AGENCY, AFTER ADVICE TO OUR OFFICE ON MARCH 25, 1969, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9 (B) (2), ADVISED THE CONTRACTING OFFICER TO PROCEED IMMEDIATELY WITH THE AWARDS OF CONTRACTS TO SPIC AND SPAN SERVICE AND MAIL MESSENGER SERVICE.

AFTER THOROUGH REVIEW OF THE EVIDENCE ADDUCED RELATIVE TO THE CHARGE OF COLLUSIVE BIDDING ON THE PART OF THE OWNERS OF SPIC AND SPAN AND MAIL MESSENGER, WE ARE OF THE OPINION THAT THE RECORD BEFORE US IS NOT INDICATIVE OF ANY IMPROPER BIDDING PRACTICES ON THE PART OF THESE INDIVIDUALS. RATHER, IT APPEARS THAT COMPETITION WAS ENHANCED BY THE SUBMISSION OF BIDS BY MESSRS. BURTON AND ZIMMERMAN AS EVIDENCED BY THE FACT THAT THE MONTHLY CHARGES TO THE GOVERNMENT UNDER THE NEW CONTRACT ARE APPROXIMATELY $2,600 LESS THAN LAST YEAR'S CONTRACT FOR THE SAME SERVICES.

MOREOVER, EVEN IF IT HAD BEEN DETERMINED THAT MESSRS. BURTON AND ZIMMERMAN HAD NOT, IN FACT, DISSOLVED THEIR PARTNERSHIP OF SEVERAL YEARS STANDING, OUR OFFICE IS UNAWARE OF ANY PROVISION OF LAW OR REGULATION WHICH WOULD MAKE THEIR BIDS NONRESPONSIVE BY REASON OF THAT CIRCUMSTANCE ALONE. IN THIS REGARD, ASPR 1-111.2 REQUIRES CONTRACTING OFFICERS TO REPORT PRACTICES, IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES, WHICH ARE DESIGNED TO ELIMINATE OR RESTRAIN TRADE WHICH MAY EVIDENCE POSSIBLE VIOLATIONS OF LAW. EXAMPLES OF SUCH PRACTICES SET FORTH IN THE CITED SECTION OF ASPR ARE COLLUSIVE BIDDING, FOLLOW-THE-LEADER PRICING, ROTATING LOW BIDS, UNIFORM ESTIMATING SYSTEMS, SHARING OF THE BUSINESS, IDENTICAL BIDS, ETC.

IN OUR DECISION AT 39 COMP. GEN. 892, WE TOOK COGNIZANCE OF THE FACT THAT IT IS NOT UNUSUAL FOR MULTIPLE BIDS TO BE SUBMITTED BY AN INDIVIDUAL OR INDIVIDUALS WHO MIGHT HAVE LEGITIMATE REASONS FOR SUBMITTING BIDS OF TWO OR MORE COMPANIES COMMONLY OWNED AND/OR CONTROLLED. SEE, ALSO, B-162187, NOVEMBER 29, 1967, WHEREIN WE HELD:

"IN ANY EVENT, THE PROCURING AGENCY IS GENERALLY REQUIRED TO ACCEPT THE LOWEST RESPONSIVE BID SUBMITTED BY A RESPONSIBLE BIDDER. 10 U.S.C. 2305. THEREFORE, WE MAY CONCLUDE THAT WHERE THE CONSIDERATION OF BIDS SUBMITTED FOR LEGITIMATE BUSINESS REASONS BY AN INDIVIDUAL THROUGH TWO OWNED OR CONTROLLED COMPANIES WILL NOT PREJUDICE THE GOVERNMENT OR AFFORD EITHER COMPANY AN ADVANTAGE NOT ENJOYED BY OTHER BIDDERS, WE WILL TAKE NO EXCEPTION TO THE AWARD OF A CONTRACT TO EITHER COMPANY, PROVIDED THAT THE COMPANY HAS BEEN AFFIRMATIVELY DETERMINED TO BE THE RESPONSIBLE BIDDER WHICH SUBMITTED THE LOW RESPONSIVE BID, AS IN THE PRESENT CASE.'

IN VIEW THEREOF AND SINCE THE RECORD BEFORE US DOES NOT SUPPORT YOUR ALLEGATION OF COLLUSIVE BIDDING, YOUR PROTEST IS DENIED.