B-173183, B-172627, JUL 7, 1971
Highlights
EVEN IF PRESS' CONTENTION THAT ITS BID WAS RESPONSIVE BECAUSE IT FOLLOWED THE CUSTOMARY PRACTICE OF ADDING A READING FEE IS ACCEPTED. THE INITIAL IFB WAS STILL DEFECTIVE IN THAT IT INCLUDED NO PROVISION FOR EITHER INSERTION BY THE BIDDER OR EVALUATION BY THE GOV. YOU BASE YOUR REQUEST FOR RECONSIDERATION ON THE CONTENTION THAT THE INITIAL PRESS BID WAS RESPONSIVE FOR FOLLOWING THE CUSTOMARY PRACTICE OF ADDING THE READING FEE. THIS IN NO WAY ALTERS THE FACT THAT THE INITIAL IFB WAS DEFECTIVE IN THAT IT INCLUDED NO PROVISION FOR EITHER INSERTION BY THE BIDDER OR EVALUATION BY THE GOVERNMENT OF A READING FEE WHICH THIS OFFICE HAS DETERMINED TO BE A NECESSARY BASIS OF EVALUATION IN THE INSTANT PROCUREMENT.
B-173183, B-172627, JUL 7, 1971
BID PROTEST - CANCELLATION & RESOLICITATION - EQUAL OPPORTUNITY TO COMPETE REAFFIRMING PRIOR DECISION DENYING PROTEST OF PRESS INTELLIGENCE, INC. AGAINST THE DETERMINATION TO REJECT ALL BIDS UNDER AN IFB ISSUED BY HEW. EVEN IF PRESS' CONTENTION THAT ITS BID WAS RESPONSIVE BECAUSE IT FOLLOWED THE CUSTOMARY PRACTICE OF ADDING A READING FEE IS ACCEPTED, THE INITIAL IFB WAS STILL DEFECTIVE IN THAT IT INCLUDED NO PROVISION FOR EITHER INSERTION BY THE BIDDER OR EVALUATION BY THE GOV. OF A READING FEE WHICH THE COMP. GEN. HAS DETERMINED TO BE A NECESSARY BASIS FOR EVALUATION IN THE INSTANT PROCUREMENT. THE IFB DID NOT AFFORD PROSPECTIVE BIDDERS A COMMON GROUND UPON WHICH TO COMPETE.
TO ARNOLD AND PORTER:
WE REFER TO THAT PORTION OF YOUR LETTER DATED JUNE 3, 1971, REQUESTING ON BEHALF OF PRESS INTELLIGENCE, INCORPORATED (PRESS), RECONSIDERATION OF OUR DECISION DATED MAY 28, 1971, B-172627, DENYING YOUR PROTEST OF THE CONTRACTING OFFICER'S DETERMINATION TO REJECT ALL BIDS UNDER INVITATION FOR BIDS (IFB) NO. 8-71-HEW-OS, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) AND TO READVERTISE THE PROCUREMENT UNDER IFB NO. 11-71-HEW-OS, ISSUED ON APRIL 5, 1971. YOU BASE YOUR REQUEST FOR RECONSIDERATION ON THE CONTENTION THAT THE INITIAL PRESS BID WAS RESPONSIVE FOR FOLLOWING THE CUSTOMARY PRACTICE OF ADDING THE READING FEE. HOWEVER, EVEN IF YOUR CONTENTION BE ACCEPTED, THIS IN NO WAY ALTERS THE FACT THAT THE INITIAL IFB WAS DEFECTIVE IN THAT IT INCLUDED NO PROVISION FOR EITHER INSERTION BY THE BIDDER OR EVALUATION BY THE GOVERNMENT OF A READING FEE WHICH THIS OFFICE HAS DETERMINED TO BE A NECESSARY BASIS OF EVALUATION IN THE INSTANT PROCUREMENT. SINCE YOU HAVE PRODUCED NO EVIDENCE TO SUPPORT THE CONCLUSION THAT THIS IFB DID, IN FACT, PROVIDE A BASIS UPON WHICH BIDDERS COULD INTELLIGENTLY PREPARE THEIR BIDS, WE CANNOT BUT CONCLUDE THAT OUR INITIAL DETERMINATION IS CORRECT.
YOU FURTHER CONTEND THAT PRESS WAS UNFAIRLY PENALIZED DUE TO AN ERROR ON THE PART OF THE GOVERNMENT, ESPECIALLY IN VIEW OF THE FACT THAT PRESS WAS THE ONLY BIDDER WITHIN THE REALM OF CONSIDERATION. THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDE AT SECTION 1-2.404 1(B)(I) THAT AN INVITATION FOR BIDS MAY BE CANCELLED AFTER BID OPENING, BUT BEFORE AWARD, WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. IT IS OUR OPINION THAT THE INITIAL IFB DID NOT AFFORD PROSPECTIVE BIDDERS A COMMON GROUND UPON WHICH TO COMPETE. ALTHOUGH YOU CONTEND THAT THE OTHER BIDDER WAS NOT PREJUDICED BY THE DEFECTIVE IFB, WE CANNOT CONCLUDE THAT THE PROCURING AGENCY ACTED IMPROPERLY IN CANCELLING THE INVITATION UNDER THE INSTANT CIRCUMSTANCES.
WE MUST THEREFORE REAFFIRM OUR DECISION OF MAY 28, 1971.