B-168669, MARCH 30, 1970, 49 COMP. GEN. 646

B-168669, MARCH 30, 1970, 49 COMP. GEN. 646

BIDS -- TIE -- PROCEDURE FOR RESOLVING ALTHOUGH THREE TIE BIDS STAMPED RECEIVED WITHIN A 5-MINUTE PERIOD UNDER A REQUEST FOR QUOTATIONS ISSUED PURSUANT TO 41 U.S.C. 252(C)(3) SHOULD NOT HAVE BEEN RESOLVED BY AWARDING A CONTRACT TO THE FIRM WHOSE QUOTATION HAD THE EARLIEST TIME STAMP, THE RECORD EVIDENCES NO FAVORITISM OR IMPROPER MOTIVE FOR THE AWARD AND, THEREFORE, THE EXECUTED PROCUREMENT WILL NOT BE DISTURBED, EVEN THOUGH AS A MATTER OF SOUND JUDGMENT THE MATTER SHOULD HAVE BEEN RESOLVED BY GIVING PREFERENCE TO SMALL BUSINESS CONCERNS IN ACCORDANCE WITH THE POLICY STATED IN SECTIONS 1-2.407-6 AND 1-3.601 OF THE FEDERAL PROCUREMENT REGULATIONS. WHILE PROCEDURES FOR BREAKING TIES IN ADVERTISED PROCUREMENTS (FPR 1-2.407-6) DO NOT APPLY TO SMALL PURCHASES, THEY WILL BE APPLIED BY THE CONTRACTING AGENCY IN THE FUTURE WHEN IDENTICAL PRICE QUOTATIONS ARE SUBMITTED IN ORDER TO AVOID EVEN THE APPEARANCE OF PARTIALITY.

TO VIDEO ENGINEERING CO., INC., MARCH 30, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1969, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO MULTI-MEDIA ENGINEERING, INC., PURSUANT TO REQUEST FOR QUOTATIONS (RFQ) NO. 6-J, ISSUED BY THE UNITED STATES INFORMATION AGENCY, WASHINGTON, D. C.

A WRITTEN REQUEST FOR QUOTATIONS NO. 6-J, ISSUED ON OCTOBER 22, 1969, TO YOUR FIRM, MULTI-MEDIA ENGINEERING CO., INC., ROCKVILLE, MARYLAND, AND AMPEX CORPORATION, ARLINGTON, VIRGINIA, REQUESTED QUOTATIONS ON ONE "AMPEX MODEL VR-5100 VIDEOTAPE RECORDER WITH AMPEX MODEL TR-820 MONITOR RECEIVER *** ." SUBSEQUENTLY, THE SAME FIRMS WERE ORALLY REQUESTED TO PROVIDE QUOTATIONS ON AN ALTERNATE LIST INCLUDING THE ABOVE AND SOME ITEMS OF AMPEX EQUIPMENT.

THE MULTI-MEDIA, AMPEX AND VIDEO ENGINEERING QUOTATIONS WERE TIME STAMPED AS "RECEIVED" BY THE PROCURING ACTIVITY ON OCTOBER 27, 1969, AT 12:15 P.M., 12:16 P.M., AND 12:20 P.M., RESPECTIVELY. YOUR ORIGINAL QUOTATION DID NOT INCLUDE A PRICE ON THE ALTERNATE LIST, BUT A QUOTATION THEREON WAS RECEIVED ON OCTOBER 29, 1969. ALL THREE FIRMS SUBMITTED IDENTICAL PRICE QUOTATIONS, INCLUDING PROMPT PAYMENT DISCOUNTS, ON BOTH REQUESTS. THIS IS ASCRIBED BY THE PROCURING ACTIVITY "TO THE FACT THAT THE QUOTES SUBMITTED ARE BASED UPON A COMMON PRICE LIST SUBMITTED BY THE MANUFACTURER--AMPEX-- TO ITS DEALERS ***."

SINCE THE PRICES QUOTED WERE IDENTICAL, THE PROCURING ACTIVITY DETERMINED THAT AWARD WOULD BE MADE TO THE FIRM WHOSE QUOTATION BORE THE EARLIEST TIME STAMP. A PURCHASE ORDER WAS ISSUED TO MULTI-MEDIA ON OCTOBER 30, 1969, AND THE GOODS HAVE SINCE BEEN DELIVERED AND PAYMENT THEREFOR HAS BEEN MADE.

YOU HAVE OBJECTED TO THE USE OF THE TIME OF RECEIPT AS A BASIS FOR THE ISSUANCE OF A PURCHASE ORDER TO MULTI-MEDIA, CONTENDING THAT THIS PROCEDURE VIOLATES SECTION 1-2.407-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH REQUIRES A DRAWING OF LOTS WHEN EQUAL BIDS ARE RECEIVED AND THERE IS NO DIFFERENCE BETWEEN BIDDERS AS TO SMALL BUSINESS STATUS OR CLASSIFICATION AS CERTIFIED ELIGIBLE OR LABOR SURPLUS AREA CONCERNS.

THE ABOVE MENTIONED SECTION IS SPECIFICALLY APPLICABLE ONLY TO AWARDS UNDER FORMALLY ADVERTISED PROCUREMENTS. THE INSTANT PROCUREMENT WAS NOT FORMALLY ADVERTISED BUT WAS NEGOTIATED UNDER THE AUTHORITY OF 41 U.S.C. 252(C)(3), WHICH PERMITS NEGOTIATION WHEN "THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED $2,500." THE PROCEDURES FOR SUCH SMALL PURCHASES ARE PRESCRIBED BY FPR SUBPART 1-3.6, BUT THAT SUBPART CONTAINS NO PROVISION FOR DETERMINATION OF AWARDS ON TIE BIDS. HOWEVER, SINCE IT IS STATED IN FPR 1-3.601 THAT ONE OF THE OBJECTIVES OF THE SMALL PURCHASE PROCEDURE IS TO IMPROVE OPPORTUNITIES FOR SMALL BUSINESS CONCERNS TO OBTAIN GOVERNMENT CONTRACTS, AND FPR 1-2.407-6 DOES PROVIDE A PREFERENCE FOR SMALL BUSINESS CONCERNS, WE BELIEVE THAT, IN THE ABSENCE OF ANY OTHER PRESCRIBED PROCEDURE OR CLEAR REASON TO THE CONTRARY, THE PROVISIONS OF THAT SECTION SHOULD HAVE BEEN FOLLOWED AS A MATTER OF SOUND JUDGMENT.

WHILE THE RECORD IN THE INSTANT CASE DOES NOT REVEAL ANY INDICATION OF FAVORITISM OR OTHER IMPROPER MOTIVE IN THE AWARD TO MULTI-MEDIA, AND YOU HAVE NOT ALLEGED ANY SUCH IMPROPRIETY, THE USE OF THE TIME OF RECEIPT OF PROPOSALS IS SO FRAUGHT WITH THE POSSIBILITY OF ABUSE THAT WE COULD NOT APPROVE IT AS A REGULAR PROCEDURE. IN THIS CONNECTION, WE HAVE BEEN ADVISED BY THE PROCURING AGENCY THAT TO AVOID EVEN THE APPEARANCE OF PARTIALITY IN FUTURE SMALL PURCHASE PROCUREMENTS WHEREIN IDENTICAL PRICE QUOTATIONS ARE SUBMITTED, THE PROCEDURES OF FPR 1-2.407 6 WILL BE FOLLOWED TO DETERMINE TO WHOM A PURCHASE ORDER WILL BE ISSUED. SINCE THE PROVISIONS OF FPR 1-2.407-6 WERE NOT CLEARLY APPLICABLE IN THIS INSTANCE, AND THERE APPEARS NO INDICATION OF ANY LACK OF GOOD FAITH IN THE AWARD MADE, AND THE SUPPLIES HAVE BEEN DELIVERED, WE FIND NO PROPER BASIS FOR NOW DISTURBING THE PROCUREMENT, AND YOUR PROTEST MUST THEREFORE BE DENIED. HOWEVER, WE APPRECIATE YOUR BRINGING THE MATTER TO OUR ATTENTION.