B-172583, AUG 4, 1972

B-172583, AUG 4, 1972

BID PROTEST - REQUIREMENT FOR COMPETITION DENIAL OF PROTEST BY THE SINGER COMPANY AGAINST THE AWARD OF A CONTRACT TO PENN ELECTRIC MOTOR COMPANY UNDER A GSA SOLICITATION FOR 519 PORTABLE ELECTRIC DISK SANDERS. THE RECORD HERE DOES NOT SUPPORT PROTESTANT'S CONTENTION THAT THERE WAS INADEQUATE COMPETITION. THE SOLICITATION OF SEVEN MAJOR SUPPLIERS OF ELECTRIC POWERED HAND TOOLS CLEARLY COMPLIED WITH THE REQUIREMENTS OF FPR 1-3.101. ALSO, THE COMPARISON OF PENN ELECTRIC'S PRICE TO THAT OBTAINED ON THE LAST FORMAL PROCUREMENT WAS A REASONABLE METHOD OF ASSURING PRICE COMPETITION WITHIN THE PURVIEW OF FPR 1 3.807(B)(1)(III). ACCORDINGLY, THE PROTEST IS DENIED.

TO THE SINGER COMPANY:

WE REFER TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER GENERAL SERVICES ADMINISTRATION SOLICITATION FPNTP-B6-32839-N.

THE PROCUREMENT IN QUESTION INVOLVED 519 PORTABLE ELECTRIC DISK SANDERS FOR WHICH A CONTRACT WAS AWARDED TO PENN ELECTRIC MOTOR COMPANY. YOU CONTEND THAT THE AWARD WAS ERRONEOUS BECAUSE OF INADEQUATE COMPETITION SINCE ONLY ONE OFFER WAS RECEIVED, AND BECAUSE SINGER WAS DENIED AN OPPORTUNITY TO COMPETE BY GSA'S FAILURE TO SPECIFY A DATE FOR SUBMISSION OF OFFERS IN THE SOLICITATION AND SUBSEQUENTLY IMPOSING AN IMMINENT SUBMISSION DEADLINE.

THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE PREVIOUS PROCUREMENT OF SIMILAR DISK SANDERS TOOK PLACE IN JANUARY 1967, WHEN 1,530 WERE PURCHASED FROM BLACK AND DECKER IN AN ADVERTISED PROCUREMENT WHICH SPECIFIED SANDERS LISTED ON THE QUALIFIED PRODUCTS LIST. TWO RECENT FORMALLY ADVERTISED PROCUREMENTS, EACH OF WHICH SPECIFIED SANDERS LISTED ON THE QPL, PRODUCED NO RESPONSIVE BIDS. AFTER LEARNING THAT BLACK AND DECKER, THE ONLY MANUFACTURER WHOSE SANDERS WERE QUALIFIED, NO LONGER MANUFACTURES THE SANDERS LISTED ON THE QPL, THE CONTRACTING OFFICER DETERMINED THAT BECAUSE OF DEPLETED STOCK AND BACKORDERS FOR SANDERS, A PUBLIC EXIGENCY EXISTED AND THAT PROCUREMENT OF 519 DISK SANDERS SHOULD BE NEGOTIATED PURSUANT TO SECTION 302(C)(2) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 393, AS AMENDED (41 U.S.C. 252).

ON MARCH 31, 1971, SEVEN SUPPLIERS OF ELECTRIC POWERED HAND TOOLS WERE CONTACTED BY TELEPHONE IN ORDER TO SECURE QUOTATIONS AS QUICKLY AS POSSIBLE. EACH PROSPECTIVE OFFEROR WAS ADVISED THAT THE PROCUREMENT WAS SUBJECT TO THE SAME TERMS AND CONDITIONS AS THOSE SET FORTH IN IFB FPNTP- B8-32839A, EXCEPT THAT A QUALIFIED PRODUCT WAS NOT REQUIRED. FIVE OF THE SUPPLIERS, BLACK AND DECKER, ROCKWELL, SKIL CORPORATION, MILLERS FALLS AND THOR POWER TOOL, ADVISED IMMEDIATELY THAT THEY WOULD NOT SUBMIT A QUOTATION. PENN ELECTRIC MOTOR QUOTED A UNIT PRICE OF $64.90 EACH FOR THE 519 SANDERS. YOUR FIRM ALONE, AMONG THE SEVEN FIRMS CONTACTED, NEITHER FURNISHED A QUOTATION NOR DECLINED TO DO SO. INSTEAD YOUR REPRESENTATIVE STATED THAT HE WOULD ADVISE WITHIN A FEW DAYS WHETHER YOUR FIRM WOULD QUOTE ON THE PROCUREMENT.

WE ARE ADVISED THAT, WHEN NO WORD WAS RECEIVED FROM YOUR COMPANY, THE PROCUREMENT AGENT TRIED, WITHOUT SUCCESS, ON THREE OCCASIONS BETWEEN MARCH 31 AND APRIL 7, 1971, TO REACH YOUR REPRESENTATIVE. ON THE MORNING OF APRIL 7, THE PROCUREMENT AGENT REACHED YOUR REPRESENTATIVE AND WAS TOLD THAT YOUR COMPANY DID NOT HAVE A QUOTATION READY. YOU WERE ADVISED THAT BECAUSE OF THE URGENT NEED FOR THE SANDERS, THE PROCURING AGENCY COULD NOT WAIT ANY LONGER AND YOU WERE GIVEN UNTIL THE CLOSE OF BUSINESS ON APRIL 7 TO SUBMIT A QUOTATION. YOU CALLED THE CONTRACTING OFFICER ABOUT 4:00 P.M. TO STATE THAT YOU WOULD NOT BE ABLE TO PROVIDE A QUOTATION.

AWARD WAS THEREAFTER MADE TO PENN ELECTRIC ON APRIL 8, 1971, FOR A TOTAL PRICE OF $33,683.10 FOR THE QUANTITY OF 519 SANDERS. THE OFFER OF PENN ELECTRIC AND THE CONTRACT AWARDED THEREON WERE IN ACCORDANCE WITH THE TERMS OF THE PREVIOUS ADVERTISED INVITATION, WITH THE EXCEPTION OF THE QPL REQUIREMENT, AND SPECIFIED 519 SANDERS, TO BE DELIVERED 180 DAYS AFTER RECEIPT OF NOTICE OF AWARD, IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION 00-S-001116, DATED JANUARY 31, 1967, SUPPRESSED FOR ELECTROMAGNETIC INTERFERENCE IN ACCORDANCE WITH MIL-STD 1337A, DATED JUNE 16, 1969.

YOUR LETTER COMMENTING ON THE REPORT FROM GSA TAKES ISSUE WITH ITS ACCOUNT OF THE TELEPHONE CONVERSATIONS THEREIN. YOU ALLEGE THAT YOU DID NOT STATE AT 4:00 P.M. THAT YOU WOULD NOT BE ABLE TO PROVIDE A QUOTATION, BUT RATHER THAT YOU EXPECTED TO HAVE A QUOTATION ON APRIL 8. YOU FURTHER ALLEGE THAT THE CONTRACTING OFFICER TOLD YOU THAT THE AWARD COULD NOT BE DELAYED BUT THAT YOUR QUOTATION WOULD BE CONSIDERED IF RECEIVED BEFORE AWARD. YOU STATE THAT YOU THEN TRIED UNSUCCESSFULLY TO REACH OTHER OFFICIALS IN GSA TO REQUEST AN EXTENSION OF THE TIME FOR SUBMISSION OF AN OFFER. YOU FURTHER STATE THAT ALTHOUGH YOU WERE IN A POSITION TO SUBMIT A QUOTATION AT 6:30 P.M. ON APRIL 7, YOU DID NOT SUBMIT IT TO THE CONTRACTING OFFICER AT THE BEGINNING OF BUSINESS ON APRIL 8. INSTEAD, YOU CALLED THE ACTING CHIEF OF THE TOOLS BRANCH, PROCUREMENT OPERATIONS DIVISION, AND WHEN YOU REACHED HIM AROUND MID DAY YOU STATED YOU WERE IN A POSITION TO QUOTE ON THE SANDERS. YOUR CALL WAS RETURNED LATE IN THE AFTERNOON, WHEN YOU WERE ADVISED THAT AWARD HAD BEEN MADE THAT MORNING.

YOU ALSO CONTEND THAT THE FACT THAT SEVEN DAYS PASSED AFTER THE INITIAL SOLICITATION OF OFFERS BEFORE THE DEADLINE WAS IMPOSED IS IRRELEVANT. YOU STATE THAT AS A PRACTICAL MATTER, YOU HAD ONLY SEVEN HOURS TO SUBMIT AN OFFER (I.E., FROM 9:30 A.M. TO 4:30 P.M. ON APRIL 7) A CONDITION WHICH EFFECTIVELY DENIED YOUR COMPANY AN OPPORTUNITY TO COMPETE.

ALTHOUGH YOU DO NOT SPECIFICALLY DISPUTE THE STATEMENT IN THE GSA REPORT THAT YOU WERE ADVISED THAT THIS PROCUREMENT WAS SUBJECT TO THE SAME TERMS AND CONDITIONS AS THE PREVIOUS ADVERTISED PROCUREMENT, WHICH CALLED FOR 180-DAY DELIVERY, YOU ALLEGE THAT YOU WERE ASKED TO QUOTE ON THE BASIS OF 90-DAY DELIVERY AND WERE NEVER TOLD THAT 180-DAY DELIVERY WOULD BE ACCEPTABLE. IT IS YOUR CONTENTION THAT YOU WERE THEREBY DEPRIVED OF A CHANCE TO COMPETE ON AN EQUAL DELIVERY BASIS.

WHILE THERE MAY HAVE BEEN SOME CONFUSION ON YOUR PART AS TO THE ACCEPTABLE DELIVERY PERIOD, IT IS OUR VIEW THAT THE STATEMENT THAT THIS PROCUREMENT WAS SUBJECT TO THE SAME TERMS AND CONDITIONS AS THE PREVIOUS ADVERTISED PROCUREMENT WAS SUFFICIENT TO INFORM YOU THAT 180 DAY DELIVERY WAS ACCEPTABLE. WHILE IT MAY BE TRUE THAT YOU WERE PLANNING TO QUOTE ON THE DESIRED DELIVERY OF 90 DAYS, IT DOES NOT APPEAR FROM THE RECORD THAT THE CONTRACTING OFFICER WAS AWARE OF YOUR INTENTION, AND WE ARE THEREFORE UNABLE TO CONCLUDE THAT HE SHOULD HAVE EXTENDED THE TIME FOR SUBMISSION OF OFFERS FOR THIS REASON.

WITH REGARD TO THE FAILURE TO SET A SPECIFIC DATE FOR SUBMISSION OF OFFERS AT THE TIME OF THE INITIAL TELEPHONIC SOLICITATION, GSA ACKNOWLEDGES THAT THE PROVISIONS OF FPR 1-3.802(C) WERE NOT FOLLOWED, AND THE PROCUREMENT PERSONNEL INVOLVED HAVE BEEN INSTRUCTED TO FOLLOW SUCH PROVISIONS IN THE FUTURE. THE QUESTION FOR RESOLUTION, HOWEVER, IS NOT WHETHER THERE WAS STRICT COMPLIANCE WITH THE REGULATION IN THIS INSTANCE, BUT RATHER WHETHER THE FAILURE OF THE CONTRACTING OFFICER TO GIVE YOU ADDITIONAL TIME TO SUBMIT AN OFFER HAS ARBITRARILY DEPRIVED YOU OF AN OPPORTUNITY TO COMPETE.

IN THIS REGARD, IT WOULD APPEAR FROM YOUR OWN ACCOUNT OF THE EVENTS ON APRIL 7 AND 8 THAT IT WAS NOT THE ACTION OF THE CONTRACTING OFFICER BUT RATHER YOUR OWN ACTION WHICH PRECLUDED YOU FROM HAVING YOUR QUOTATION CONSIDERED BEFORE AWARD. YOU RELATE THAT IN YOUR TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER AT 3:55 P.M. ON APRIL 7, HE STATED THAT ALTHOUGH HE WOULD NOT HOLD UP THE AWARD, HE WOULD CONSIDER YOUR QUOTATION IF RECEIVED BEFORE AWARD. YOU ALSO STATE THAT YOU WERE IN A POSITION TO SUBMIT A QUOTATION AT 6:30 P.M. ON APRIL 7. HOWEVER, YOU DID NOT COMMUNICATE YOUR QUOTATION TO THE CONTRACTING OFFICER AT THE BEGINNING OF BUSINESS ON APRIL 8. INSTEAD, YOU CALLED ANOTHER OFFICIAL OF GSA WHO WAS NOT DIRECTLY INVOLVED IN MAKING THE AWARD TO INFORM HIM THAT YOU WERE READY TO QUOTE. SINCE THE AWARD WAS NOT MADE UNTIL SOMETIME IN THE MORNING OF APRIL 8, IT WOULD APPEAR THAT YOU HAD IT WITHIN YOUR POWER TO SUBMIT YOUR QUOTATION TO THE CONTRACTING OFFICER IN TIME FOR CONSIDERATION PRIOR TO AWARD, BUT YOU DID NOT DO SO. THESE CIRCUMSTANCES LEND NO SUPPORT TO A CONTENTION THAT YOU WERE ARBITRARILY DENIED AN OPPORTUNITY TO COMPETE, AND AFFORD NO BASIS FOR OBJECTION TO THE AWARD AS MADE.

YOUR CONTENTION THAT THE AWARD WAS ERRONEOUS BECAUSE OF INADEQUATE COMPETITION CITES FPR 1-3.101 FOR THE PROPOSITION THAT PROPOSALS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE OF AND REQUIREMENT FOR THE SUPPLIES TO BE PROCURED AND FPR 1- 3.802(B) FOR THE NECESSITY OF INVITING PROPOSALS FROM A SUFFICIENT NUMBER OF COMPETENT SOURCES TO ISSUE ADEQUATE COMPETITION. IN OUR VIEW, THE SOLICITATION OF SEVEN MAJOR SUPPLIERS OF ELECTRIC POWERED HAND TOOLS COMPLIED WITH THESE PROVISIONS OF FPR. RECEIPT OF OFFERS FROM TWO OR MORE OFFERORS WAS NOT A PREREQUISITE TO A VALID AWARD.

YOU FURTHER QUOTE THE DEFINITION OF ADEQUATE PRICE COMPETITION IN FPR 1- 3.807-1 WHICH STATES THAT PRICE COMPETITION EXISTS IF AT LEAST TWO RESPONSIBLE OFFERORS SUBMIT PRICED OFFERS RESPONSIVE TO THE SOLICITATION. SINCE ONLY ONE OFFER WAS RECEIVED IT IS APPARENT THAT THIS SOLICITATION DOES NOT FALL WITHIN THAT PORTION OF THE PROVISIONS OF THIS SECTION WHICH YOU QUOTE. HOWEVER, THE SAME SECTION PROVIDES IN PARAGRAPH (B)(1)(III) THAT A PRICE IS "BASED ON" ADEQUATE PRICE COMPETITION IF PRICE ANALYSIS SHOWS CLEARLY THAT THE PRICE IS REASONABLE IN COMPARISON WITH CURRENT OR RECENT PRICES FOR THE SAME OR SUBSTANTIALLY THE SAME ITEMS PROCURED IN COMPARABLE QUANTITIES UNDER CONTRACTS AWARDED AS A RESULT OF ADEQUATE PRICE COMPETITION. THE RECORD SHOWS THAT THE MOST RECENT PROCUREMENT OF SIMILAR SANDERS WAS A FORMALLY ADVERTISED PROCUREMENT FOR A QUANTITY OF 1,530 IN JANUARY 1967. THE PRESENT CONTRACT FOR A SMALLER QUANTITY OF 519 SANDERS REFLECTS A 15.4 PERCENT DECREASE IN THE UNIT PRICE FROM THE PREVIOUS PROCUREMENT AND IS CLEARLY A REASONABLE PRICE IN COMPARISON WITH THAT PROCUREMENT. IT IS THEREFORE OUR OPINION THAT THE CURRENT PRICE IS BASED ON ADEQUATE PRICE COMPETITION WITHIN THE PURVIEW OF FPR 1-3.807 1(B)(1)(III).

YOU HAVE ALSO ALLEGED THAT THE SANDER PENN ELECTRIC PROPOSED TO FURNISH UNDER THE CONTRACT DOES NOT MEET THE FEDERAL SPECIFICATION CITED THEREIN. IN THIS REGARD, THE RECORD SHOWS THAT PENN ELECTRIC TOOK NO EXCEPTION TO THE SPECIFICATIONS NOR DID THE CONTRACT PROVIDE FOR ANY DEVIATION. WHETHER THE SANDERS ACTUALLY DELIVERED UNDER THE CONTRACT MEET THE SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION, AND DOES NOT RAISE A QUESTION RELATING TO THE VALIDITY OF THE CONTRACT WHICH IS FOR CONSIDERATION UNDER YOUR BID PROTEST.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.