B-222487, AUG 4, 1986, 86-2 CPD 141
Highlights
WHERE IT FAILED TO ADVERTISE IN THE COMMERCE BUSINESS DAILY THAT IT WAS SOLICITING OFFERS FOR OPTICAL DISK SYSTEMS AND MAILED COPIES OF THE SOLICITATION ONLY TO MICROPHOTOGRAPHIC EQUIPMENT FIRMS. FIRMS WHICH SPECIALIZE IN THE MANUFACTURE OR SALE OF OPTICAL DISK EQUIPMENT AND SUPPLIES WERE NOT SOLICITED. IT WAS NOT NOTIFIED OF THE PROCUREMENT BECAUSE GSA FAILED TO PROPERLY ANNOUNCE THE REQUIREMENT IN THE COMMERCE BUSINESS DAILY (CBD). ALTHOUGH THE RFP WAS MAILED TO ALL OF THE FIRMS ON THE GSA MAILING LIST FOR MICROPHOTOGRAPHIC EQUIPMENT. IT WAS NOT FURNISHED TO THE PROTESTER. ARGUES THAT CORRECTIVE ACTION IS NOT REQUIRED BECAUSE IT MADE A SIGNIFICANT EFFORT TO OBTAIN COMPETITION AND DID NOT DELIBERATELY ATTEMPT TO EXCLUDE THE PROTESTER.
B-222487, AUG 4, 1986, 86-2 CPD 141
ADVERTISING - COMMERCE BUSINESS DAILY - AUTOMATIC DATA PROCESSING EQUIPMENT DIGEST: AGENCY FAILED TO OBTAIN FULL AND OPEN COMPETITION, AS REQUIRED BY THE COMPETITION IN CONTRACTING ACT OF 1984, WHERE IT FAILED TO ADVERTISE IN THE COMMERCE BUSINESS DAILY THAT IT WAS SOLICITING OFFERS FOR OPTICAL DISK SYSTEMS AND MAILED COPIES OF THE SOLICITATION ONLY TO MICROPHOTOGRAPHIC EQUIPMENT FIRMS. FIRMS WHICH SPECIALIZE IN THE MANUFACTURE OR SALE OF OPTICAL DISK EQUIPMENT AND SUPPLIES WERE NOT SOLICITED.
REFERENCE TECHNOLOGY, INC.:
REFERENCE TECHNOLOGY, INC. PROTESTS THE PROCEDURE FOLLOWED BY THE GENERAL SERVICES ADMINISTRATION (GSA) IN SOLICITING OFFERS FOR MULTIPLE AWARD SCHEDULE CONTRACTS FOR OPTICAL DIGITAL DATA DISK SYSTEMS REQUIREMENTS UNDER REQUEST FOR PROPOSALS (RFP) NO. FGE-B3-75363-N-3-20 86. ACCORDING TO THE PROTESTER, IT WAS NOT NOTIFIED OF THE PROCUREMENT BECAUSE GSA FAILED TO PROPERLY ANNOUNCE THE REQUIREMENT IN THE COMMERCE BUSINESS DAILY (CBD).
WE SUSTAIN THE PROTEST.
THE RFP REQUESTED OFFERS TO FURNISH VARIOUS ITEMS OF MICROFILM EQUIPMENT AND SUPPLIES AS WELL AS "OPTICAL DIGITAL DATA DISK SYSTEMS," CONSISTING OF "SCANNERS, LASER-DRIVES, OPTICAL DIGITAL DATA DISKS, SELECTORS AND DATA READERS ..., AND DISPLAY TERMINALS." HOWEVER, THE SYN SYNOPSIS PUBLISHED IN THE CBD ONLY REQUESTED THE FOLLOWING: 67 - MICROFILM CAMERAS, 6730 - MICROFILM PROJECTORS, READERS, MICROFORM AND VIEWERS; 6740 - MICROFILM AND PAPER PROCESSING MACHINES. PRINTERS, REWINDS AND FILM SPLICERS, MICROFILM LASER PLATTER SYSTEMS; 6750 - MICROFILM AND SUPPLIES; DEVELOPING SOLUTIONS; 6760 - MICROFILM SPOOLS, REELS AND CARTONS.
ALTHOUGH THE RFP WAS MAILED TO ALL OF THE FIRMS ON THE GSA MAILING LIST FOR MICROPHOTOGRAPHIC EQUIPMENT, IT WAS NOT FURNISHED TO THE PROTESTER. AS A RESULT THE PROTESTER, WHICH DOES NOT MANUFACTURE OR SUPPLY MICROPHOTOGRAPHIC EQUIPMENT, DID NOT LEARN THAT THE SOLICITATION INCLUDED OPTICAL DISK EQUIPMENT, WHICH IT DOES MANUFACTURE AND SELL, UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF OFFERS.
GSA CONCEDES THAT IT DID NOT ADEQUATELY SYNOPSIZE THE OPTICAL DISK REQUIREMENTS, BUT ARGUES THAT CORRECTIVE ACTION IS NOT REQUIRED BECAUSE IT MADE A SIGNIFICANT EFFORT TO OBTAIN COMPETITION AND DID NOT DELIBERATELY ATTEMPT TO EXCLUDE THE PROTESTER.
WE DO NOT AGREE THAT THE MAILING OF THE SOLICITATION TO FIRMS LISTED ON THE AGENCY MAILING LIST FOR MICROPHOTOGRAPHIC EQUIPMENT TOGETHER WITH THE PUBLICATION OF A CBD SYNOPSIS THAT MADE NO MENTION OF OPTICAL DISK TECHNOLOGY WAS SUFFICIENT TO MEET GSA'S OBLIGATION TO OBTAIN COMPETITION FOR THIS REQUIREMENT. THE EQUIPMENT AND SUPPLIES SOLICITED RELATE TO NEWLY EMERGING LASER AND COMPUTER TECHNOLOGY, WHICH IS USED TO RECORD AND READ DIGITAL DATA AND WHICH DOES NOT INVOLVE THE USE OF ANY PHOTOGRAPHIC PROCESS, FILM OR FILM DEVELOPING TECHNIQUE; MOREOVER, THERE IS NO EVIDENCE -- NOR HAS GSA ARGUED-- THAT FIRMS THAT MANUFACTURE OR SELL MICROPHOTOGRAPHIC EQUIPMENT ARE LOGICAL SOURCES OF OPTICAL DISK SYSTEMS.
UNDER THE COMPETITION IN CONTRACTING ACT OF 1984, AGENCIES ARE REQUIRED, WHEN PROCURING PROPERTY OR SERVICES, TO OBTAIN FULL AND OPEN COMPETITION. 41 U.S.C. SEC. 253(A)(1)(A) (SUPP. II 1984). "FULL AND OPEN COMPETITION" IS OBTAINED WHEN "ALL RESPONSIBLE SOURCES ARE PERMITTED TO SUBMIT SEALED BIDS OR COMPETITIVE PROPOSALS." 41 U.S.C. SECS. 259(C) AND 403(7). FURTHERANCE OF THIS REQUIREMENT CICA MANDATES THAT AGENCIES PUBLICIZE IN THE CBD THEIR INTENTION TO SOLICIT BIDS OR PROPOSALS FOR CONTRACTS WITH EXPECTED PRICE OF $10,000 OR MORE IN ORDER THAT QUALIFIED FIRMS WILL BE AWARE OF THE GOVERNMENT'S NEEDS FOR GOODS AND SERVICES. 41 U.S.C. SEC. 416. EACH SUCH NOTICE IS REQUIRED TO CONTAIN "AN ACCURATE DESCRIPTION OF THE PROPERTY OR SERVICES TO BE CONTRACTED FOR." 41 U.S.C. SEC. 416(B)(1); SEE ALSO FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 38.203, INCORPORATING THE SYNOPSIS REQUIREMENTS OF 48 C.F.R. SEC. 5.201 FOR FEDERAL SUPPLY SCHEDULE CONTRACT SOLICITATIONS. IN THE CIRCUMSTANCES, WE FIND THAT GSA FAILED TO PROVIDE THE STATUTORILY REQUIRED NOTICE OF ITS REQUIREMENTS TO FIRMS, WHICH MANUFACTURE OR SELL OPTICAL DISK EQUIPMENT AND SUPPLIES, AND THAT GSA CONSEQUENTLY HAS FAILED TO OBTAIN FULL AND OPEN COMPETITION FOR ITS REQUIREMENT. WE RECOMMEND THAT GSA RESOLICIT THE OPTICAL DISK SYSTEM PORTION OF ITS REQUIREMENT, GIVING PROPER PUBLIC NOTICE OF THE PROCUREMENT.
THE PROTEST IS SUSTAINED. XXXX1