B-166784, JUL. 8, 1969

B-166784, JUL. 8, 1969

TO MR. FREDRIC T. SUSS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1969, AND SUPPLEMENTARY CORRESPONDENCE, PROTESTING ON BEHALF OF SAN FRANCISCO BUILDING MAINTENANCE COMPANY, INCORPORATED (SFBM), AGAINST AWARD OF A CONTRACT TO PACIFIC UTILITIES SERVICE, INCORPORATED, ON THE BASIS THAT IT WAS NOT THE LOW RESPONSIVE BIDDER UNDER INVITATION FOR BIDS NO. N62474-69-C 0856, ISSUED BY THE SAN FRANCISCO BAY NAVAL SHIPYARD, VALLEJO CALIFORNIA.

THE INVITATION, ISSUED MARCH 12, 1969, REQUIRED JANITORIAL SERVICES FOR VARIOUS BUILDINGS AT THE SAN FRANCISCO BAY NAVAL SHIPYARD FOR THE PERIOD JULY 1, 1969, THROUGH JUNE 30, 1970. ITEM 1 CALLS FOR A TOTAL PRICE FOR THE DESIGNATED JANITORIAL SERVICES IN VARIOUS BUILDINGS COVERING 1,077,916 SQUARE FEET IN ACCORDANCE WITH SPECIFICATION NO. 12 69-0856. FIVE BIDS WERE RECEIVED FOR BID OPENING ON APRIL 15, 1969. YOUR FIRM SUBMITTED THE THIRD LOW BID.

IN OUR DECISION, B-166784, DATED JUNE 16, 1969, WE CONSIDERED THAT PART OF YOUR PROTEST CONCERNING THE RESPONSIVENESS OF PACIFIC UTILITIES' BID BY STATING THE FOLLOWING:

"ESSENTIALLY YOU CONTEND THAT THE LOW BIDDER, PACIFIC UTILITIES SERVICE, INCORPORATED, FAILED TO COMPLY WITH SECTION 3, PARAGRAPH 3.3, PAGE 1, OF THE SPECIFICATION AND ADDENDUM 2. PARAGRAPH 3.3 OF THE CONTRACT SPECIFICATION IS AS FOLLOWS: -ITEMS OF BIDS. BIDS SHALL BE SUBMITTED IN QUADRUPLICATE ON AND IN ACCORDANCE WITH NAVDOCKS FORM 2996 (1-64). (THE SUMMARY PRICE SCHEDULE, APPENDIX "A" , SHALL BE COMPLETED TO SHOW COST PER SECTION PER YEAR.) THE TOTAL OF APPENDIX "A" SHALL ADD TO THE TOTAL PRICE, BID ITEM 1. -ITEM 1. PRICE PER YEAR FOR THE ENTIRE WORK COMPLETE IN ACCORDANCE WITH THE SPECIFICATIONS.- ADDENDUM NO. 2 STATES IN PERTINENT PART AS FOLLOWS:

-APPENDIX "A" - SUMMARY PRICE SCHEDULE

ADD: TOTAL PRICE FOR ANNUAL GLASS CLEANING.-

"THE INVITATION REQUIRED THAT APPENDIX -A- BE SUBMITTED WITH THE BID AND THAT APPENDICES -B- THROUGH -F- BE SUBMITTED WITHIN 10 DAYS AFTER AWARD. ALL APPENDICES CALLED FOR PRICE BREAKDOWNS. APPENDIX -F- COVERED PRICE BREAKDOWNS FOR ANNUAL GLASS CLEANING FOR BUILDINGS BY AREA IN ACCORDANCE WITH PARAGRAPH 2.9 OF THE SPECIFICATION.

"SPECIFICALLY, IT IS YOUR CONTENTION THAT THE SUM TOTAL SUBMITTED BY PACIFIC UNDER APPENDIX -A- WOULD HAVE ADDED UP TO A HIGHER PRICE THAN THE TOTAL SUBMITTED UNDER ITEM 1, CONTRARY TO PARAGRAPH 3.3, HAD PACIFIC INCLUDED A SUMMARY LISTING FOR ANNUAL GLASS CLEANING. FURTHER YOU CONTEND THAT THE FAILURE TO FURNISH THE SUMMARY TOTAL IS CONTRARY TO THE REQUIREMENTS OF ADDENDUM NO. 2.

"THE RECORD BEFORE OUR OFFICE SHOWS THE SUM TOTAL OF APPENDIX -A- TO BE THE SAME AS THE AMOUNT LISTED UNDER ITEM 1 OF PACIFIC'S BID. FURTHER, PACIFIC ACKNOWLEDGED RECEIPT OF ADDENDUM NO. 2 AND SUBMITTED APPENDIX -A- WITH ITS BID, BUT DID NOT SHOW A SEPARATE TOTAL PRICE FOR ANNUAL GLASS CLEANING. IT IS THE CONTRACTING OFFICER'S OPINION THAT SINCE NEITHER THE ADDENDA NOR THE APPENDICES ADDED ANY GLASS CLEANING TO WHAT WAS SET FORTH IN THE BASIC SPECIFICATIONS, IT MUST BE CONCLUDED THAT THE ITEM 1 TOTAL PRICE SUBMITTED BY PACIFIC COVERED ALL THE GLASS CLEANING. IN THIS REGARD, THE FAILURE OF PACIFIC TO SHOW A SEPARATE PRICE FOR GLASS CLEANING IN APPENDIX -A- DID NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE SERVICES. SEE 30 COMP. GEN. 179, 181.

"WE CONCUR WITH THE CONCLUSION REACHED BY THE CONTRACTING OFFICER. THE PURPOSE OF THE APPENDICES, INCLUDING APPENDIX -A-, WAS TO ACQUIRE INFORMATION TO BE USED DURING THE PERFORMANCE OF THE CONTRACT. WHILE PACIFIC FAILED TO ADD A SEPARATE TOTAL FOR GLASS CLEANING, THE FACT REMAINS THAT IT WOULD STILL BE OBLIGATED TO PROVIDE ALL SERVICES UNDER THE SPECIFICATIONS AT THE TOTAL PRICE SUBMITTED AS ITEM 1. IN 40 COMP. GEN. 321, 324, WE STATED THAT:

-WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTEREST OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OF MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHTS TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURE TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.-

"APPLYING THESE PRINCIPLES, WE CONCLUDE THAT THE FAILURE OF PACIFIC TO SUBMIT A SEPARATE COST BREAKDOWN IN APPENDIX -A- WAS A MINOR DEVIATION NOT AFFECTING PRICE, QUANTITY OR QUALITY OF THE WORK SPECIFIED IN THE INVITATION AND MAY BE WAIVED. SEE B-151276, MAY 28, 1963.'

IN YOUR LETTER OF JUNE 9, 1969, YOU CITE OUR DECISION, B-166654, DATED MAY 23, 1969, AS CLOSELY PARALLELING THE FACTS OF THIS CASE. WE DO NOT AGREE WITH YOUR RATIONALE. OUR OFFICE HAS HELD THAT A BIDDER MAY NOT ALLEGE ERROR AND THEN RETRACT THAT ALLEGATION TO THE PREJUDICE OF OTHER BIDDERS. IN THE INSTANT CASE, NO ERROR WAS ALLEGED, THEREFORE, NO ERROR WAS RETRACTED.

IN RESPONSE TO THAT PORTION OF YOUR PROTEST CONCERNING THE FAILURE OF THIS PROCUREMENT TO BE MADE A SMALL BUSINESS SET-ASIDE, THE CONTRACTING OFFICER'S REPORT STATES THE FOLLOWING: "WITH REGARD TO THE ISSUE OF SET ASIDE, A REVIEW OF PAST PROCUREMENTS FOR THIS WORK INDICATED THAT, AS A SET-ASIDE PROCUREMENT, THE NUMBER OF BIDDERS HAD DECREASED FROM YEAR TO YEAR AS THE SCOPE OF WORK INCREASED. ACCORDINGLY, IN 1967, THE OFFICER IN CHARGE DETERMINED THAT THE PROCUREMENT SHOULD BE ADVERTISED ON AN UNRESTRICTED BASIS IN ORDER TO INSURE ADEQUATE COMPETITION. AGAIN THIS YEAR, THE SAME DETERMINATION WAS MADE, STRENGTHENED BY THE FACT THAT APPROXIMATELY $200,000 OF WORK HAD BEEN ADDED. THE LOCAL SMALL BUSINESS ADMINISTRATION REPRESENTATIVE DID NOT INDICATE DISAGREEMENT WITH THE ACTION IN EITHER YEAR. FIVE BIDS WERE RECEIVED, THREE OF THEM FROM SMALL BUSINESSES. IN VIEW OF THESE RESULTS, WE DO NOT CONSIDER THAT THIS EXERCISE OF DISCRETION BY THE OFFICER IN CHARGE WAS UNREASONABLE OR IMPROPER.'

OUR OFFICE HAS CONSISTENTLY RECOGNIZED THE ESTABLISHED POLICY THAT A FAIR PROPORTION OF PURCHASES OF SUPPLIES AND SERVICES BE PLACED WITH SMALL BUSINESS CONCERNS, WHICH IS IN KEEPING WITH THE NATIONAL POLICY AND THE SMALL BUSINESS ACT (15 U.S.C. 631, ET SEQ.) AS IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION 1-700. THE DECISION, HOWEVER, AS TO WHETHER A CERTAIN PROCUREMENT SHOULD BE SET ASIDE IN WHOLE OR IN PART FOR SMALL BUSINESS CONCERNS IS WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY. NEITHER THE PROVISIONS CONTAINED IN THE ASPR NOR THE PROVISIONS OF THE SMALL BUSINESS ACT MAKE IT MANDATORY THAT THERE BE SET ASIDE FOR SMALL BUSINESS ANY PARTICULAR PROCUREMENT. 43 COMP. GEN. 657, 45 ID. 228, 41 ID. 351.

ACCORDINGLY, THE PROTEST MADE TO OUR OFFICE IN THE MATTER MUST BE, AND IS, DENIED.