B-182914, APR 10, 1975

B-182914, APR 10, 1975

ASPR SEC. 2-203.1 (1974 ED.) MANDATES THAT IFB'S BE MAILED TO SUFFICIENT NUMBER OF PROSPECTIVE BIDDERS TO INSURE ADEQUATE COMPETITION. WHERE METHOD OF SOLICITATION PROVIDES ADEQUATE COMPETITION THE FAILURE TO SOLICIT A PARTICULAR BIDDER DOES NOT PRECLUDE AWARD OF CONTRACT IN ABSENCE OF SHOWING OF BAD FAITH INTENT TO EXCLUDE THAT BIDDER.

PREEN BUILDING MAINTENANCE COMPANY:

THIS CASE INVOLVES A PROTEST BY THE PREEN BUILDING MAINTENANCE COMPANY (PREEN) AGAINST THE AWARD OF A CONTRACT TO PERFORM CUSTODIAL SERVICES AT THE CUTLER ARMY HOSPITAL, FORT DEVENS, MASSACHUSETTS, UNDER INVITATION FOR BIDS (IFB) NO. DAKF-31-75-B-0038.

THE IFB WAS ISSUED ON DECEMBER 10, 1974, AFTER NOTICE OF THE PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY, AND THE BIDS WERE TO BE OPENED ON DECEMBER 27, 1974. THE BID LIST INCLUDED 12 FIRMS, SELECTED ON THE BASIS OF RESPONSES TO RECENT SOLICITATIONS AND QUALIFICATIONS TO PERFORM THE CONTRACT. THE CONTRACTING OFFICER STATES THAT PREEN WAS NOT INCLUDED ON THE BID LIST BECAUSE IT HAD NOT RESPONDED TO 3 IFB'S FOR CUSTODIAL SERVICES AT ARMY CENTERS THROUGHOUT NEW ENGLAND IN OCTOBER 1974 AND BECAUSE MR. CLARENCE JONES, PREEN'S PRESIDENT, HAD ORALLY INFORMED THE CONTRACTING OFFICER AROUND THE TIME OF THE SOLICITATION THAT HE WAS NO LONGER INTERESTED IN ACTIVELY SEEKING THE AWARD OF GOVERNMENT CONTRACTS. PREEN HAS NOT DENIED THESE ALLEGATIONS.

ON DECEMBER 20, 1974, MR. JONES SPOKE WITH AN ARMY CONTRACTING OFFICER WHO WAS NOT INVOLVED IN THIS PROCUREMENT, AND HE ASKED WHY PREEN HAD NOT RECEIVED THE SOLICITATION. THE CONTRACTING OFFICER TOLD MR. JONES THAT HE DID NOT KNOW WHY PREEN HAD NOT RECEIVED AN IFB, BUT HE TOLD MR. JONES THAT THE ARMY COULD MAIL A COPY OF THE IFB TO PREEN OR THAT MR. JONES COULD PICK UP A COPY HIMSELF AT ANY TIME. MR. JONES ASKED THE CONTRACTING OFFICER TO MAIL AN IFB TO PREEN, AND THE IFB WAS SENT THAT DAY.

ON THAT SAME DAY, DECEMBER 20, 1974, MR. JONES SENT TO OUR OFFICE A MAIL GRAM TO PROTEST THE AWARD OF A CONTRACT UNDER THE IFB. THE PROTEST WAS FILED WITH US ON DECEMBER 23. MR. JONES REQUESTED A 2-WEEK DELAY IN THE BID OPENING DATE SO THAT HE MIGHT HAVE A BETTER OPPORTUNITY TO STUDY THE IFB AND PREPARE A BID. TWENTY BIDS WERE RECEIVED BY DECEMBER 27 AND THEY WERE OPENED AS SCHEDULED; NEVERTHELESS, PENDING OUR DECISION THE ARMY HAS NOT AWARDED THE CONTRACT.

THE ARMY URGES A DENIAL OF PREEN'S PROTEST. IT POINTS OUT THAT THERE WERE FIVE FIRMS WHICH WERE MAILED BIDS ON DECEMBER 20 AND THREE OF THESE FIRMS SUBMITTED TIMELY BIDS. THE ARMY ALSO FEELS THAT IT WAS IN FULL COMPLIANCE WITH ALL APPLICABLE SECTIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

ASPR SEC. 2-203.1 (1974 ED.) PROVIDES THAT IFB'S "*** SHALL BE MAILED (OR DELIVERED) TO A SUFFICIENT NUMBER OF PROSPECTIVE BIDDERS SO AS TO ELICIT ADEQUATE COMPETITION. ***" THERE IS NO REQUIREMENT FOR A CONTRACTING AGENCY TO SOLICIT EVERY POSSIBLE BIDDER. WE HAVE CONSISTENTLY HELD THAT, WHERE A METHOD OF SOLICITATION PROVIDES ADEQUATE COMPETITION, THE FAILURE TO SOLICIT A PARTICULAR BIDDER DOES NOT, ABSENT A SHOWING OF INTENTIONAL OR BAD FAITH PRECLUSION, AFFORD A SUFFICIENT BASIS TO QUESTION AN OTHERWISE PROPER SOLICITATION. SEE B 178967(1), NOVEMBER 5, 1973, AND CASES CITED THEREIN.

ACCORDINGLY, THE PROTEST IS DENIED.