B-171660, MAR 2, 1971

B-171660, MAR 2, 1971

BID PROTEST - VAGUE SOLICITATION DENIAL OF PROTEST OF LOGAN HEIGHTS INDUSTRIAL ENTERPRISES, INC., AGAINST THE AWARD OF A CONTRACT FOR SORTING, MATCHING, AND STUFFING 1,560,000 GOVERNMENT-OWNED IBM CARDS ISSUED BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIF., TO SHELTERED WORKSHOPS OF SAN DIEGO, INC. A SOLICITATION WHICH STATES "NECESSARY SERVICES TO SORT, MATCH AND STUFF GOVERNMENT-OWNED IBM CARDS, (APPROXIMATELY 30,000 PER WEEK)", IS NOT VAGUE AND INDEFINITE WHEN BIDDERS ARE AFFORDED ADEQUATE OPPORTUNITY TO INSPECT THE SITE WHERE SERVICES ARE TO BE PERFORMED AND ARE GIVEN OPPORTUNITIES TO OBTAIN INTERPRETATIONS OF THE SOLICITATION.

TO KAMINAR, SORBO, ANDREEN & THORN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1971, PROTESTING ON BEHALF OF LOGAN HEIGHTS INDUSTRIAL ENTERPRISES, INC., AGAINST THE AWARD OF A CONTRACT TO SHELTERED WORKSHOPS OF SAN DIEGO, INC., UNDER INVITATION FOR BIDS (IFB) NO. N00244-71-B-0294, ISSUED BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA.

THE IFB, A SET-ASIDE FOR SMALL BUSINESS, SOLICITED UNIT PRICE BIDS TO SORT, MATCH, AND STUFF AN ESTIMATED 1,560,000 GOVERNMENT-OWNED IBM CARDS IN GOVERNMENT-FURNISHED ENVELOPES DURING A 1-YEAR PERIOD COMMENCING JANUARY 1, 1971. FIFTEEN FIRMS, INCLUDING LOGAN HEIGHTS, WERE SOLICITED FOR BIDS AND SIX RESPONDED. SHELTERED WORKSHOPS OF SAN DIEGO, INC., SUBMITTED THE LOWEST BID AND WAS AWARDED THE CONTRACT ON DECEMBER 21, 1970.

LOGAN HEIGHTS PROTESTS THAT THE SOLICITATION WAS TOO VAGUE, INDEFINITE, AND INCOMPLETE FOR COMPREHENSION BY A BIDDER OR FOR EVALUATION OF COMPETITIVE BIDS BY THE CONTRACTING AGENCY. LOGAN HEIGHTS ALSO STATES THAT THE ONLY REASON IT FAILED TO SUBMIT A BID WAS THAT THE VAGUENESS AND INDEFINITENESS OF THE SOLICITATION PREVENTED IT FROM DOING SO.

THE ITEM DESCRIPTION IN THE SOLICITATION STATED:

"NECESSARY SERVICES TO SORT, MATCH AND STUFF GOVERNMENT-OWNED IBM CARDS, (APPROXIMATELY 30,000 PER WEEK)." THERE WAS NO STATEMENT IN THE SOLICITATION AS TO HOW THE SORTING, MATCHING, AND STUFFING OPERATION WAS TO BE PERFORMED. HOWEVER, THE SOLICITATION ENCOURAGED BIDDERS TO VISIT THE SITE AS FOLLOWS:

"BIDDERS ARE URGED AND EXPECTED TO INSPECT THE SITE WHERE SERVICES ARE TO BE PERFORMED AND TO SATISFY THEMSELVES AS TO ALL GENERAL AND LOCAL CONDITIONS THAT MAY AFFECT THE COST OF PERFORMANCE OF THE CONTRACT, TO THE EXTENT SUCH INFORMATION IS REASONABLY OBTAINABLE. *** " FURTHER, THE SOLICITATION INCLUDED STANDARD FORM 33A IN WHICH PARAGRAPH 3 PROVIDES FOR EXPLANATION OF THE INVITATION AS FOLLOWS:

"ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWING, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. *** "

THE CONTRACTING OFFICER HAS REPORTED THAT AFTER THE ISSUANCE OF THE IFB, MR. JAMES E. BROWN, PRESIDENT OF LOGAN HEIGHTS, CONTACTED THE PROCUREMENT ASSISTANT AND REQUESTED ADDITIONAL INFORMATION REGARDING THE SERVICES REQUIRED. MR. BROWN WAS PROVIDED ALL THE INFORMATION AVAILABLE AND REFERRED TO ANOTHER OFFICER FOR A SITE VISIT TO DISCUSS THE OPERATION. THE CONTRACTING OFFICER HAS STATED THAT MR. BROWN WAS REQUESTED TO NOTIFY THE PROCURING OFFICE OF ANY DIFFICULTIES HE MIGHT ENCOUNTER IN GATHERING INFORMATION ESSENTIAL FOR THE PREPARATION OF A BID. ACCORDING TO THE REPORT, HE WAS ALSO INFORMED THAT IF HE WAS NOT SATISFIED WITH THE SOLICITATION HE SHOULD PUT HIS THOUGHTS IN WRITING FOR CONSIDERATION BY THE CONTRACTING OFFICER. MR. BROWN THEN DISCUSSED THE SOLICITATION WITH THE OFFICER CHARGED WITH THE RESPONSIBILITY OF CONDUCTING SITE VISITS. THE CONTRACTING OFFICER HAS STATED THAT SINCE HE DID NOT RECEIVE A TELEPHONE CALL OR LETTER FROM MR. BROWN AFTER THE SITE VISIT, IT WAS ASSUMED THAT HE WAS SATISFIED WITH THE SOLICITATION.

LOGAN HEIGHTS DID NOT SUBMIT A BID AND MR. BROWN DID NOT COMMUNICATE WITH THE AGENCY AGAIN UNTIL A COUPLE OF HOURS AFTER THE 10 A.M. BID OPENING ON DECEMBER 11, 1970. IT IS REPORTED THAT, AT THAT TIME, THE PROCUREMENT ASSISTANT RECEIVED A TELEPHONE CALL IN WHICH MR. BROWN IMPLIED THAT HE THOUGHT THE BID OPENING WAS TO BE THAT AFTERNOON AND MENTIONED THAT LOGAN HEIGHTS MIGHT SUBMIT A PROTEST. IT IS STATED THAT MR. BROWN WAS REQUESTED TO SUBMIT THE PROTEST IN WRITING TO THE CONTRACTING OFFICER FOR A DECISION BEFORE AWARD WHICH WAS MADE ON DECEMBER 21, 1970, BUT THAT THERE WAS NO FURTHER PROTEST UNTIL THE LETTER OF JANUARY 7, 1971, TO OUR OFFICE, AFTER INFORMAL ADVICE OF SUCH PROTEST BY TELEPHONE ON THAT DATE.

IN THE CIRCUMSTANCES, IT APPEARS THAT THE MANNER OF PERFORMING THE OPERATIONS WAS IN GOOD MEASURE LEFT TO THE INDIVIDUAL BIDDERS. IF THE DESCRIPTION IN THE SOLICITATION WAS NOT ADEQUATE FOR THE PREPARATION OF A BID ON THE PERFORMANCE INVOLVED, LOGAN HEIGHTS AND OTHER PROSPECTIVE BIDDERS WERE PROVIDED WITH AN OPPORTUNITY TO VISIT THE SITE, DISCUSS THE OPERATIONS, AND SEEK ANY NECESSARY CLARIFICATION PRIOR TO THE SUBMISSION OF BIDS. IN THAT CONNECTION, WE NOTE THAT FIVE OTHER BIDDERS WERE ABLE TO PREPARE AND SUBMIT BIDS WITHOUT ANY APPARENT DIFFICULTY. IN FACT, IT APPEARS THAT LOGAN HEIGHTS WAS ENCOURAGED TO NOTIFY THE CONTRACTING OFFICE BEFORE THE OPENING OF BIDS IF IT ENCOUNTERED ANY PROBLEM IN UNDERSTANDING WHAT WAS REQUIRED AND STATED NO OBJECTION REGARDING THE SOLICITATION UNTIL AFTER BIDS WERE OPENED. IN A SOMEWHAT ANALOGOUS SITUATION, IN 48 COMP. GEN. 757 (1969), AT PAGE 760, IT WAS STATED:

"IT IS NOTEWORTHY THAT PLURIBUS (THE PROTESTANT) FAILED TO STATE OR TO SHOW THAT EITHER BIDDER IN FACT FOUND THIS INVITATION TO BE AMBIGUOUS. PARAGRAPH 3 OF STANDARD FORM 33A INFORMED BIDDERS THAT THEY HAD A RIGHT TO EXPLANATION OF THE MEANING OF THE INVITATION AND OF ANY DRAWINGS OR SPECIFICATIONS. THE MORE APPROPRIATE TIME FOR CLARIFICATION OF SUCH AN UNCERTAINTY WOULD HAVE BEEN PRIOR TO THE TIME FOR SUBMISSION OF BIDS. 162566, DECEMBER 13, 1967. THE SUBMISSION OF A PROTEST AFTER BID OPENING, ON MATTERS ONE WOULD REASONABLY EXPECT TO HAVE BEEN CLARIFIED DURING THE PERIOD WHEN BIDS WERE BEING PREPARED, TENDS TO CAUSE DOUBT AS TO THE PURPOSE AND VALIDITY OF THE PRESENT PROTEST." SEE ALSO B-166685, AUGUST 8, 1969.

LOGAN HEIGHTS ALSO PROTESTS THAT IT WAS PREJUDICED BY THE FACT THAT THE SUCCESSFUL BIDDER PREVIOUSLY HAD PERFORMED SIMILAR CONTRACTS FOR THE NAVY AND THEREBY HAD EXPERIENCE THAT IT WAS ABLE TO TRANSLATE INTO A SUCCESSFUL BID. HOWEVER, THESE CONDITIONS WERE NOT NECESSARILY PREJUDICIAL TO OTHER BIDDERS. A BIDDER WITH EXPERIENCE IN PERFORMING A PARTICULAR TYPE OF CONTRACT STILL UNDERTAKES A CERTAIN AMOUNT OF RISK IN ESTIMATING COSTS. IN THAT REGARD, OUR OFFICE HAS STATED:

" *** THE CURRENT CONTRACTOR HAS HISTORICAL KNOWLEDGE OF THE GOVERNMENT'S PAST REQUIREMENTS; HOWEVER, LIKE THE OTHER BIDDERS, IT HAD TO RESPOND TO THE ESTIMATED ADVERTISED REQUIREMENTS AND IT HAD NO KNOWLEDGE OF THE ACTUAL REQUIREMENTS WHICH ARE TO BE GENERATED. THE INCUMBENT CONTRACTOR MAY HAVE AN ADVANTAGE OVER THE OTHER BIDDERS IN THAT IT HAD EXPERIENCED THE FREQUENCIES OF CERTAIN CATEGORIES OF WORK. THESE FACTORS ARE INHERENT IN GOVERNMENT PROCUREMENT AND ARE NOT PREJUDICIAL TO OTHER BIDDERS PER SE." B-166005, MARCH 25, 1969.

ACCORDINGLY, IN VIEW OF THE FOREGOING, THE PROTEST OF LOGAN HEIGHTS IS DENIED.