B-155319, NOV. 20, 1964

B-155319, NOV. 20, 1964

TO MR. PAUL T. MCHENRY, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1964, AND ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT TO SILENT HOIST AND CRANE CO., INC., BY THE U.S. COAST GUARD AT CURTIS BAY, MARYLAND, BECAUSE YOUR CLIENT, FREE STATE EQUIPMENT CO., INC., DID NOT RECEIVE A COPY OF INVITATION FOR BIDS 82443 5301 0 UNDER WHICH SAID CONTRACT WAS AWARDED.

THE INVITATION, WHICH CALLED FOR BIDS ON AN INDUSTRIAL TRUCK CRANE, WAS ISSUED ON SEPTEMBER 11, 1964, AND SENT TO FOUR MANUFACTURERS OF MOBILE CRANES SELECTED FROM A BIDDERS LIST WHICH APPEARS TO HAVE INCLUDED BOTH CRANE MANUFACTURERS AND MANUFACTURERS OF OTHER INDUSTRIAL AND YARD EQUIPMENT. ONE BID WAS RECEIVED AND OPENED ON SEPTEMBER 23, 1964, AS SCHEDULED, AND AN AWARD BASED THEREON WAS MADE TO SILENT HOIST AND CRANE CO., ON SEPTEMBER 24, 1964. THE SUCCESSFUL BID WAS IN THE AMOUNT OF $12,289, AND THE GOVERNMENT ESTIMATE WAS $13,000.

THE ADMINISTRATIVE REPORT STATES THE FOLLOWING WITH RESPECT TO THE FAILURE OF YOUR CLIENT TO RECEIVE A COPY OF THE INVITATION:

"A. DURING THE PLANNING PHASE OF SPECIFICATION PREPARATION, OBTAINING NECESSARY BUDGETARY APPROVALS AND SUBMISSION OF "REQUEST FOR PROCUREMENT," A REPRESENTATIVE OF FREE STATE EQUIPMENT CO., INC. MADE DIRECT VISITS TO YARD PLANT MAINTENANCE DIVISION. DURING ONE OF THESE VISITS THIS REPRESENTATIVE WAS INFORMED THAT A "REQUEST FOR PROCUREMENT" WAS BEING PREPARED TO COVER PURCHASE OF AN INDUSTRIAL TRUCK CRANE. THIS REPRESENTATIVE REQUESTED THE CHIEF, PLANT MAINTENANCE DIVISION, YARD TO CALL THE PROCUREMENT SECTION TO MAKE SURE THAT HIS FIRM WOULD RECEIVE AN INVITATION TO BID. THE CALL WAS MADE TO THE CONTRACTING OFFICER. THE CONTRACTING OFFICER REQUESTED THE CHIEF, PLANT MAINTENANCE DIVISION TO INSERT THIS FIRM'S NAME IN THE "SUGGESTED SOURCE OF SUPPLY" BLOCK ON FORM CG-9748 TO CALL POSITIVE ATTENTION TO THE PURCHASING AGENT ADMINISTERING THE RESULTING BID. AT THE TIME OF THE TELEPHONE CALL, THE CONTRACTING OFFICER ALSO GAVE THE COGNIZANT PURCHASING AGENT A NOTE CALLING ATTENTION TO THE INTERESTED BIDDER. THE NOTE DID NOT CONTAIN A "REQUEST FOR PROCUREMENT" CONTROL NUMBER AS NONE HAD BEEN ASSIGNED AT THAT TIME.

"B. REQUEST NUMBER 82443 5301 0 WAS CLEARED THROUGH CHANNELS AND RECEIVED IN THE PROCUREMENT SECTION ON 23 JULY 1964.

"/1) THE NAME OF FREE STATE EQUIPMENT CO., INC. HAD NOT BEEN INSERTED IN THE "SUGGESTED SOURCE OF SUPPLY" BLOCK.

"/2) THE COGNIZANT PURCHASING AGENT RESIGNED FROM HER POSITION AT THE YARD ON 31 JULY 1964. NO ACTION HAD BEEN TAKEN ON THE "REQUEST FOR PROCUREMENT" DUE TO NECESSITY OF CLEARING UP TRANSACTIONS IN PROCESS PRIOR TO HER DEPARTURE. * * *"

IN YOUR LETTER PROTESTING AGAINST AWARD OF THIS CONTRACT YOU ASK THAT IT BE CANCELLED AND THE REQUIREMENT BE READVERTISED, AND YOU ALSO STATE THAT THIS IS THE SECOND TIME THIS HAS HAPPENED. WITH RESPECT TO THE LATTER STATEMENT, WE HAVE BEEN FURNISHED A COPY OF THE LETTER OF YOUR CLIENT OF DECEMBER 9, 1963, TO WHICH YOU REFER, AS WELL AS A COPY OF THE ADMINISTRATIVE REPORT PREPARED IN RESPONSE THERETO. IT IS APPARENT FROM THE FOREGOING THAT THE PROTEST OF YOUR CLIENT AT THAT TIME WAS NOT THE SAME AS IS NOW BEING MADE. THE EARLIER PROTEST INVOLVED A CLAIM BY YOUR CLIENT, SUBSEQUENT TO SUBMISSION OF ITS BID, THAT AWARD WAS MADE TO A NONRESPONSIVE BIDDER AND SHOULD HAVE BEEN MADE TO IT AS THE LOW RESPONSIVE BIDDER. IN VIEW THEREOF, AND SINCE THAT PROTEST WAS ADMINISTRATIVELY DENIED, THERE DOES NOT APPEAR TO BE ANY BASIS FOR ITS FURTHER CONSIDERATION IN DETERMINING THE MERITS OF THE PRESENT PROTEST.

ALTHOUGH IT IS REGRETTABLE THAT YOUR CLIENT DID NOT RECEIVE A COPY OF THE INVITATION AS IT REQUESTED, THE CIRCUMSTANCES RESULTING IN THIS OMISSION DO NOT INDICATE ANY INTENT OR PURPOSE ON THE PART OF THE PERSONNEL INVOLVED TO PRECLUDE YOUR CLIENT OR ANY OTHER PRESPECTIVE BIDDER FROM BIDDING. IN THE ABSENCE OF SUCH INTENT OR PURPOSE, OUR OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE TO FURNISH A PROSPECTIVE BIDDER A COPY OF AN INVITATION DOES NOT CONSTITUTE A SUFFICIENT BASIS ON WHICH TO QUESTION AN OTHERWISE PROPER AWARD. 34 COMP. GEN. 684; B 138281, FEBRUARY 13, 1959; B-135553, MAY 5, 1958.

YOU ALSO CONTEND THAT THIS CONTRACT SHOULD BE CANCELLED AND THE REQUIREMENT READVERTISED BECAUSE THE LIST OF BIDDERS WAS DEFICIENT. WHILE A BROADER DISTRIBUTION OF THIS INVITATION MAY HAVE BEEN DESIRABLE, WE DO NOT THINK THERE WAS SO CLEAR A DEPARTURE FROM THE REQUIREMENTS OF THE APPLICABLE LAW AND REGULATIONS AS TO REQUIRE READVERTISEMENT. SECTION 2305/A) OF TITLE 10 OF THE U.S.C. PROVIDES THAT WHEN FORMAL ADVERTISING IS REQUIRED, THE INVITATION FOR BIDS ,SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY * * * NEEDED * * *.' SECTION 2-102.1/A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES, WITH RESPECT TO PROCUREMENT BY FORMAL ADVERTISING PURSUANT TO 10 U.S.C. 2304/A), THAT ,PROCUREMENTS SHALL GENERALLY BE MADE BY SOLICITING BIDS FROM ALL QUALIFIED SOURCES OF SUPPLIES * * * DEEMED NECESSARY BY THE CONTRACTING OFFICER TO ASSURE FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE REQUIRED SUPPLIED * * *.' SECTION 2-101 OF ASPR IN DEFINING "FORMAL ADVERTISING" ALSO STATES IN PARAGRAPH (II) THAT IT INVOLVES "PUBLICIZING THE INVITATION FOR BIDS, THROUGH DISTRIBUTION TO PROSPECTIVE BIDDERS, POSTING IN PUBLIC PLACES, AND SUCH OTHER MEANS AS MAY BE APPROPRIATE. * * *"

IT IS CLEAR FROM THE ABOVE-CITED LAWS AND REGULATIONS THAT THE MEANS BY WHICH A PARTICULAR INVITATION FOR BIDS IS PUBLICIZED AND THE NUMBER OF PROSPECTIVE BIDDERS SOLICITED DIRECTLY ARE MATTERS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER, SO LONG AS HE CONSIDERS SUCH PUBLICATION AND SOLICITATION ADEQUATE TO ASSURE "FREE AND FULL COMPETITION.' B-154688, OCTOBER 7, 1964. THE QUESTION, THEREFORE, IS WHETHER THERE WAS A PROPER EXERCISE OF THE DISCRETION PERMITTED THE CONTRACTING OFFICER UNDER THE CIRCUMSTANCES IN THIS CASE. WHERE, AS HERE, IN ADDITION TO THE INVITATION BEING SENT DIRECTLY TO FOUR BIDDERS, A COPY WAS SENT TO THE MAIN POST OFFICE, BALTIMORE, MARYLAND, A COPY WAS PLACED IN THE PENDING INVITATION FILE LOCATED ON THE COUNTER IN THE PROCUREMENT SECTION AT THE PROCURING ACTIVITY, AND A COPY WAS MAILED TO THE PUBLIC SERVICE BUREAU, WASHINGTON, D.C., WE CANNOT SAY THAT THE CONTRACTING OFFICER WAS NOT JUSTIFIED IN BELIEVING THAT THE SOLICITATION WAS INSUFFICIENT TO ASSURE SUCH "FREE AND FULL COMPETITION" AS IS CONTEMPLATED BY 10 U.S.C. 2304/A).

ACCORDINGLY, WE SEE NO LEGAL BASIS UPON WHICH WE MAY QUESTION THE VALIDITY OF THE CONTRACT AWARDED IN THIS CASE. YOUR PROTEST MUST THEREFORE BE DENIED.