B-171736, JUN 10, 1971

B-171736, JUN 10, 1971

BID PROTEST - BID RESPONSIVENESS - LICENSING DENIAL OF PROTEST OF WOODARD ASIATIC, DIVISION OF WOODARD RESEARCH CORPORATION AGAINST AWARD OF CONTRACT TO PRIMELABS, INC., LOW BIDDER, UNDER IFB ISSUED BY DEPARTMENT OF HEW, PUBLIC HEALTH SERVICE, CENTER FOR DISEASE CONTROL, FOR SUPPLY OF 250 MONKEYS OF INDIAN ORIGIN. PROTESTANT ALLEGES THAT PRIMELABS WAS NONRESPONSIVE AS IT WAS NOT PROPERLY LICENSED WITH USDA. ALTHOUGH IFB INCORPORATED BY REFERENCE PUBLIC LAW 89-544, WHICH REQUIRED LICENSING OF DEALERS IN DOGS AND CATS, THE PROCURING AGENCY INCLUDED THE PROVISION BECAUSE CHANGE IN THE LAW OF AN UNDETERMINED NATURE WAS EXPECTED. ALTHOUGH THE AMENDMENT TO THE LAW DID REQUIRE LICENSING OF DEALERS IN ALL ANIMALS, ITS EFFECTIVE DATE WAS SUBSEQUENT TO THE DATE OF CONTRACT FULFILLMENT. AS PRIMELABS DID NOT DEAL IN DOGS OR CATS, PUBLIC LAW 89-544 DID NOT AFFECT THE RESPONSIVENESS OF THEIR BID.

TO BURKHARDT, ARNAVAS & BARTL:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 22, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF WOODARD ASIATIC (WOODARD), A DIVISION OF WOODARD RESEARCH CORPORATION AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. 14 71, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, CENTER FOR DISEASE CONTROL, ATLANTA, GEORGIA.

THE RECORD SHOWS THAT THE IFB WAS ISSUED ON DECEMBER 18, 1970, AND SOLICITED THE SUPPLY OF 250 MONKEYS OF INDIAN ORIGIN - MACACA MULATTA (RHESUS) WITHIN A CERTAIN WEIGHT RANGE, IN GOOD HEALTH, PRE-CONDITIONED AND TB TESTED BEFORE DELIVERY.

THE GENERAL REQUIREMENTS OF THE SOLICITATION ALSO INCLUDED, BY REFERENCE, THE PROVISIONS OF THE LABORATORY ANIMAL WELFARE ACT, PUBLIC LAW 89-544, WHICH PROVIDES, AMONG OTHER THINGS, FOR LICENSING OF DEALERS IN LIVE DOGS AND CATS BY THE USDA.

BIDS WERE OPENED ON JANUARY 15, 1971, AND THE APPARENT LOW BIDDER WAS PRIMELABS, INCORPORATED OF FARMINGDALE, NEW JERSEY, AT $43 PER UNIT. THE NEXT LOW BID WAS FROM PRIMATE IMPORTS CORPORATION, PORT WASHINGTON, NEW YORK, AT $45 PER UNIT, FOLLOWED BY THE BID OF J.E. J.A., INCORPORATED, SIMPSONVILLE, MARYLAND, AT $51, WOODARD AT $57.75 PLUS $15 PER SHIPMENT, AND INTERNATIONAL ANIMAL EXCHANGE, FERNDALE, MICHIGAN, AT $86.50 PER UNIT.

PURSUANT TO THE PROVISIONS OF THE IFB, AN INSPECTION OF THE FACILITIES OF PRIMELABS, INCORPORATED, WAS CONDUCTED BY THE CDC ANIMAL BREEDING & HOLDING UNIT. THE INSPECTION REPORT FOUND THE PRIMELABS FACILITIES SATISFACTORY IN ALL RESPECTS.

UPON RECEIVING THE INSPECTION REPORT, THE CONTRACTING OFFICER MADE A FAVORABLE DETERMINATION OF THE RESPONSIBILITY OF PRIMELABS, AND AWARDED CONTRACT HSM 21-71-52 TO THAT FIRM ON JANUARY 19, 1971.

YOU PROTEST THE AWARD ON GROUNDS THAT THE BIDS OF PRIMELABS AND PRIMATE ARE NONRESPONSIVE TO THE IFB AND THAT BOTH PRIMELABS AND PRIMATE ARE NONRESPONSIBLE BIDDERS. YOU APPARENTLY DO NOT CONTEST THE BID OF J.E. J.A., INCORPORATED, WHICH WAS LOWER THAN THE BID OF WOODARD EXCEPT BY IMPLICATION IN MAINTAINING THAT WOODARD WAS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

IN SUPPORT OF YOUR CONTENTION THAT THE BIDS OF PRIMELABS AND PRIMATE WERE NONRESPONSIVE, YOU POINT TO THE REQUIREMENT OF PUBLIC LAW 89-544 THAT A DEALER MUST BE PROPERLY LICENSED BY THE USDA, AND THAT WITHIN THE TERM OF THAT LAW, WOODARD WAS A LICENSED DEALER AND PRIMELABS AND PRIMATE WERE NOT.

SECTION 4 OF PUBLIC LAW 89-544 IN ESSENCE LIMITS LICENSING REQUIREMENTS TO DEALERS IN DOGS AND CATS AND SECTION 10, IN KEEPING WITH THE INTENT OF THE LAW, CLEARLY DISTINGUISHES BETWEEN THE NEED TO KEEP RECORDS WITH RESPECT TO CATS AND DOGS ON ONE HAND AND MONKEYS ON THE OTHER.

THE CONTRACTOR WAS NOT A DEALER AS DEFINED BY PUBLIC LAW 89-544 SINCE IT DID NOT DEAL IN CATS AND DOGS AND WAS REQUIRED BY THE CONTRACT TO DELIVER MONKEYS. THEREFORE, WE FIND NOTHING IN THE CITED STATUTE WHICH WOULD ADVERSELY AFFECT PRIMELABS' RESPONSIVENESS.

BY WAY OF EXPLANATION, THE ADMINISTRATIVE AGENCY HAS STATED THAT THE PROVISIONS OF PUBLIC LAW 89-544 WERE INCORPORATED BY REFERENCE INTO THE IFB BECAUSE A CHANGE IN THE LAW WAS ANTICIPATED AND THE EXACT PROVISIONS OF THE CHANGE WERE NOT KNOWN. THE LAW WAS AMENDED BY PUBLIC LAW 91-579 - THE ANIMAL WELFARE ACT OF 1970, SECTION 3F OF WHICH CHANGED THE LICENSING REQUIREMENTS TO INCLUDE DEALERS IN ANY ANIMAL. SECTION 23, MADE THE AMENDMENT EFFECTIVE ONE YEAR AFTER THE DATE OF ENACTMENT, DECEMBER 24, 1970. THUS THE AMENDMENT HAD NO EFFECT ON THE RESPONSIVENESS OF THE BIDS TO THE IFB NOR ON THE CONTRACT WHICH WAS TO BE COMPLETED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT.

AS TO THE RESPONSIBILITY OF PRIMELABS, THAT DETERMINATION, OF COURSE, IS PRIMARILY WITHIN THE REASONABLE DISCRETION OF THE CONTRACTING OFFICER. FIND NOTHING IN THE FILE TO DEMONSTRATE ABUSE OF THAT DISCRETION. THE TWO FOREIGN COMPANIES, WHICH APPEAR TO BE THE SOURCE OF SUPPLY FOR MONKEYS, MAY, AS YOU ALLEGE, FAVOR SOME CUSTOMERS OVER OTHERS. HOWEVER, WE DO NOT BELIEVE THAT THIS ALLEGATION, EVEN IF ESTABLISHED, WOULD JUSTIFY A FINDING THAT THE CONTRACT AWARDED WAS ILLEGAL.

ACCORDINGLY, YOUR PROTEST IS DENIED.