B-170959, JAN 4, 1971

B-170959, JAN 4, 1971

BID PROTEST DENIAL OF PROTEST AGAINST CONTRACT FOR THE PROCUREMENT AND INSTALLATION OF CARPETING ABOARD THE USS BLUE RIDGE ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD AND NEGOTIATED AWARD TO K & S ASSOCIATES. WHERE BIDDERS WERE INFORMED THAT THERE WAS A DISCREPANCY IN THEIR COMPUTATION OF CARPET YARDAGE REQUIRED AND WERE REQUESTED TO RECHECK THEIR PROPOSALS AND SUBMIT A NEW BID BY TELEGRAM NONE OF WHICH DISPLACED THE LOW BID OF SUCCESSFUL BIDDER AND WHERE AN ADDITIONAL REQUISITION FOR CARPETING NOT INCLUDED IN THE ORIGINAL SOLICITATION WAS ADDED TO THE AWARD TO K & S ASSOCIATES DUE TO URGENCY OF DELIVERY AND WHERE THE PROCUREMENT WAS A NEGOTIATED PROCUREMENT, IT WAS PROPER FOR THE CONTRACTING OFFICER TO REQUEST VERIFICATION OF THE YARDAGE TO BE SUPPLIED AND THEIR PROPOSED PRICE AND THE AWARD WAS PROPER. THEREFORE PROTEST IS DENIED.

TO WILTON CARPET COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 17, 1970, REFERRED HERE BY THE REGIONAL MANAGER, DEFENSE CONTRACT AUDIT AGENCY, PROTESTING THE PROCEDURES USED IN THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSAL NO. N00151-71-R-0354, ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA.

THE REQUEST FOR PROPOSAL WAS ISSUED ON AUGUST 17, 1970, WITH A CLOSING DATE OF AUGUST 31, 1970. THE GOVERNMENT SOUGHT TO OBTAIN CARPETING FOR AND INSTALLATION OF THE CARPETING IN CERTAIN AREAS ABOARD THE USS BLUE RIDGE (LCC-19), A VESSEL BEING CONSTRUCTED AT THE PHILADELPHIA NAVAL SHIPYARD.

TWELVE COMPANIES WERE SOLICITED AND FIVE PROPOSALS WERE RECEIVED. THE COMPANIES SUBMITTING PROPOSALS AND THE PRICES SUBMITTED BY THEM WERE AS FOLLOWS:

K&S ASSOCIATES $11,338.00

EWING CARPET SHOP 12,067.84 (WITH OFFERED

DISCOUNT $11,342.98)

WILTON CARPET CO.11,532.69

JONAS WILF & SONS 12,595.40

HOLLOWAY CORP. 12,788.00

YOU STATE THAT ON SEPTEMBER 1, 1970, YOU RECEIVED A TELEPHONE CALL FROM THE PURCHASING AGENT REQUESTING THAT YOU CONFIRM YOUR OFFER ORALLY AND BY TELEGRAM, WHICH WAS DONE. YOU FURTHER STATE THAT THE OTHER BIDDERS WERE CALLED BUT INSTEAD OF BEING ADVISED THAT THEY WERE UNSUCCESSFUL WERE TOLD THAT THERE WAS A DISCREPANCY IN THEIR COMPUTATION OF CARPET YARDAGE REQUIRED AND WERE REQUESTED TO RECHECK THEIR PROPOSALS AND SUBMIT A NEW BID BY TELEGRAM. YOU ALLEGE THAT THROUGH THIS PROCEDURE YOU BECAME SECOND LOW PROPOSER INSTEAD OF THE LOW PROPOSER. YOUR PROTEST IS PREDICATED ON THE FOLLOWING STATED REASONS:

K. YOUR BID WAS THE LOW BID.

2. YOUR FIRM MEASURED THE BLUEPRINTS PRIOR TO THE OPENING OF THE BIDS. THE OTHER FIRMS DIDN'T CHECK THE PLANS UNTIL AFTER THEY WERE NOTIFIED THAT THEIR YARDAGE WAS TOO HIGH.

3. YOU BELIEVE THAT THE ONLY WAY BIDS MAY BE REOPENED IS THAT A NOTICE BE SENT THAT ALL BIDS ARE NULLIFIED AND A REQUEST MADE FOR EVERYONE TO REBID THE JOB.

IT IS ADMINISTRATIVELY REPORTED THAT AFTER OPENING AND EVALUATION OF THE PROPOSALS RECEIVED, THE CONTRACT NEGOTIATOR CALLED EACH OF THE COMPANIES WHO HAD SUBMITTED A PROPOSAL AND REQUESTED THAT THEY VERIFY THEIR PRICES AND THE YARDAGE TO BE SUPPLIED UNDER THEIR PROPOSALS, IF DIFFERENT FROM THE YARDAGE SET FORTH IN THE SOLICITATION. EWING CARPET SHOP INDICATED THAT THEIR PROPOSAL WAS BASED UPON SUPPLYING 716 SQUARE YARDS (RATHER THAN 752 SQUARE YARDS INDICATED IN THE SOLICITATION) OF CARPETING AS THIS WAS THE RESULT OF THEIR MEASUREMENTS. THEIR PRICE REMAINED UNCHANGED AS DID ALL OTHERS EXCEPT JONAS WILF & SONS, WHO QUOTED A NEW PRICE OF $11,995. THE REPORT CONTINUES THAT SINCE THE NEW BID OF JONAS WILF DID NOT DISPLACE THE LOWEST BID, IT WAS DETERMINED THAT THE CONTRACT SHOULD BE AWARDED TO K & S ASSOCIATES IN THE SUM OF $11,338.

AT ABOUT THIS TIME, AN ADDITIONAL REQUISITION FOR CARPETING IN TWO AREAS ON THE SHIP NOT INCLUDED IN THE ORIGINAL SOLICITATION WAS RECEIVED. BECAUSE OF THE SMALL AMOUNT INVOLVED AND THE URGENCY OF DELIVERY (35 DAYS AFTER DATE OF CONTRACT), IT WAS DETERMINED TO ADD THESE TWO ITEMS TO THE CONTRACT TO BE AWARDED K & S ASSOCIATES. THIS WAS DONE AFTER IT HAD BEEN DETERMINED THAT THE OFFER FOR THESE ADDITIONAL TWO ITEMS WAS REASONABLE AND COMPARABLE TO THE PRICES OFFERED UNDER THE SOLICITATION. THE CONTRACT WAS AWARDED TO K & S ASSOCIATES ON SEPTEMBER 10, 1970, AND THE DELIVERY AND INSTALLATION DATE WAS OCTOBER 15, 1970. THE USS BLUE RIDGE (LCC-19) WAS TO BE PLACED IN COMMISSION ON NOVEMBER 14, 1970. K & S ASSOCIATES MADE TIMELY DELIVERY AND INSTALLATION UNDER THE CONTRACT AWARDED TO IT.

THE CONTRACTING OFFICER FURTHER REPORTS THAT THROUGH AN ERROR IN READING THE ABSTRACT OF PROPOSALS SHEET, YOU WERE INFORMED THAT WILTON CARPET HAD INITIALLY SUBMITTED THE LOWEST OFFER, BUT THAT WHEN THE ERROR WAS DISCOVERED YOU WERE CALLED AND ADVISED OF THE ERROR.

THE SUBJECT PROCUREMENT WAS A NEGOTIATED PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2), AND NOT A FORMALLY ADVERTISED PROCUREMENT. THE LAW PERTAINING TO FORMALLY ADVERTISED COMPETITIVE BIDDING REQUIRING THAT A CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER IS NOT REQUIRED TO BE APPLIED TO NEGOTIATED PROCUREMENTS. HENCE THERE WAS NOTHING IMPROPER IN THE CONTRACTING OFFICER'S REQUESTING ALL PROPOSERS TO VERIFY THE YARDAGE TO BE SUPPLIED AND THEIR PROPOSED PRICE. ONLY ONE COMPANY, JONAS WILF, TOOK ADVANTAGE OF THE OPPORTUNITY TO CHANGE ITS PROPOSAL.

WE HAVE EXAMINED THE PROPOSAL SUBMITTED BY K & S ASSOCIATES AND FIND THAT IT, THE AMENDMENT TO THE SOLICITATION, AND THE COVERING LETTER, ARE ALL DATED AUGUST 31, 1970, AND WERE RECEIVED PRIOR TO THE CLOSING DATE, AS WAS THE BID OF THE WILTON CARPET CO. K & S ASSOCIATES DID NOT TAKE ADVANTAGE OF THE OPPORTUNITY TO LOWER THE PRICE OF ITS PROPOSAL. THE INCREASED AMOUNT OF THE FINAL CONTRACT WAS FOR ADDITIONAL CARPETING AND INSTALLATION NOT INCLUDED IN THE SOLICITATION. HENCE IT WILL BE NOTED THAT THE WILTON CARPET CO. PROPOSAL WAS NOT, IN FACT, THE LOWEST PRICE OFFERED UNDER THE SOLICITATION.

AS TO YOUR THIRD POINT, IT IS A CORRECT STATEMENT WHEN APPLIED TO FORMALLY ADVERTISED PROCUREMENTS - INVITATIONS FOR BIDS, COMMONLY CALLED IFB'S. AS INDICATED, THIS WAS A NEGOTIATED PROCUREMENT PREDICATED ON AN URGENT NEED FOR THE CARPETING WHICH DID NOT PERMIT USING THE FORMAL METHOD WHICH REQUIRED THE BIDDING PERIOD TO BE OF LONGER DURATION.

WE CANNOT CONCLUDE, ON THE BASIS OF THE RECORD, THAT ANY IMPROPRIETIES OCCURRED IN THIS SOLICITATION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.