B-176261, AUG 14, 1972

B-176261, AUG 14, 1972

BID PROTEST - FAILURE TO SOLICIT A FIRM ON BIDDER LIST - ADMINISTRATIVE ERROR DECISION DENYING PROTEST OF DEE PAPER COMPANY, INC., A COMPANY ON THE BIDDER LIST, AGAINST THE FAILURE OF THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., TO SOLICIT IT UNDER AN IFB TO FURNISH IN FLIGHT FOOD CARTONS. AS THE FAILURE TO SOLICIT WAS DUE TO AN ADMINISTRATIVE OVERSIGHT AND WAS NOT A DELIBERATE EXCLUSION, THE FAILURE - THOUGH UNFORTUNATE - DOES NOT INVALIDATE THE OTHERWISE PROPER SOLICITATION. PROTEST IS DENIED.

TO SCHNADER, HARRISON, SEGAL & LEWIS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE FAILURE OF THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, TO SOLICIT THE DEE PAPER COMPANY, INC., UNDER INVITATION FOR BIDS NO. DSA 13H-72-B 0600.

THE INVITATION, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED MAY 23, 1972, SOLICITED BIDS FOR FURNISHING IN-FLIGHT FOOD CARTONS. THE INVITATION WAS MAILED TO THE 22 SMALL BUSINESS CONCERNS APPEARING ON THE BIDDERS LIST AND WAS ALSO SYNOPSIZED IN THE COMMERCE BUSINESS DAILY.

TWO RESPONSIVE BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS SUBMITTED BY UNIVERSAL FOLDING BOX CO., INC. DEE PAPER COMPANY DID NOT BID BECAUSE IT WAS NOT FURNISHED AN INVITATION.

ALTHOUGH DEE PROTESTED BEFORE AWARD THE FAILURE OF THE PROCURING ACTIVITY TO FURNISH AN INVITATION TO THE CORPORATION, THE CONTRACTING OFFICER DETERMINED THAT THE FOOD PACKET CARTONS WERE URGENTLY REQUIRED AND, ACCORDINGLY, A CONTRACT WAS AWARDED TO UNIVERSAL FOLDING BOX CO., INC., ON JULY 6, 1972, BEFORE RESOLUTION OF THE PROTEST BY OUR OFFICE. SEE ASPR 2- 407.8(B)(3).

YOU STATE THAT DEE RECEIVED LAST YEAR'S CONTRACT FOR FURNISHING FOOD PACKET CARTONS IDENTICAL TO THAT COVERED BY THE IMMEDIATE INVITATION; THAT AT THE TIME DEE BID ON LAST YEAR'S CONTRACT, IT SPECIFICALLY REQUESTED THAT IT BE INCLUDED ON THE APPROPRIATE DSA BIDDER'S LIST SO THAT IT WOULD HAVE AN OPPORTUNITY TO BID ON SUBSEQUENT CONTRACTS; AND THAT APPROXIMATELY 30 DAYS PRIOR TO THE ISSUANCE OF THE INVITATION IN QUESTION, A REPRESENTATIVE OF DEE CALLED ON THE PROCUREMENT AGENT ASSIGNED TO THE CONTRACT AND WAS ASSURED THAT DEE WOULD RECEIVE AN INVITATION IN THE MAIL SHORTLY. YOU CONTEND THAT, IF DEE HAD RECEIVED THE INVITATION, IT WOULD HAVE UNDERBID THE UNIVERSAL FOLDING BOX COMPANY AND THAT IT IS NOW PREPARED TO BID LESS UPON READVERTISEMENT OF THE PROCUREMENT. YOU REQUEST THAT THE CONTRACT AWARDED TO UNIVERSAL BE CANCELED AND THAT THE PROCUREMENT BE READVERTISED.

IT IS UNFORTUNATE THAT THE INVITATION WAS NOT SENT TO DEE. DSA HAS REPORTED THAT DEE HAD PROPERLY COMPLETED IN 1971 ALL FORMS NECESSARY FOR INCLUSION ON THE BIDDERS LIST, AND APPROPRIATE ADMINISTRATIVE STEPS WERE TAKEN TO INCLUDE DEE ON THE LIST. DESPITE THESE ACTIONS, DEE'S NAME WAS NOT ENTERED ON THE LIST. IT WOULD APPEAR FROM THE FOREGOING THAT THE FAILURE OF DEE TO RECEIVE THE INVITATION WAS SOLELY THE RESULT OF INADVERTENT ADMINISTRATIVE OVERSIGHT.

IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED HERE, WE HAVE HELD THAT WHERE THERE IS NO EVIDENCE OF A CONSCIOUS OR DELIBERATE INTENT TO EXCLUDE A PROSPECTIVE CONTRACTOR FROM PARTICIPATING IN THE COMPETITION, THE INADVERTENT FAILURE TO FURNISH A BID SET TO AN INTERESTED FIRM DOES NOT CONSTITUTE A SUFFICIENT BASIS TO CANCEL THE INVITATION OR TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. 34 COMP. GEN. 684 (1955); B- 171213, DECEMBER 31, 1970; AND B-175217, APRIL 6, 1972. MOREOVER, IT APPEARS THAT SUFFICIENT SOURCES WERE SOLICITED TO SATISFY THE REQUIREMENTS OF FULL AND FREE COMPETITION EVEN THOUGH ONLY TWO BIDS WERE RECEIVED. 156310, JUNE 10, 1965. WHILE IT IS REGRETTABLE THAT DEE DID NOT HAVE AN OPPORTUNITY TO SUBMIT A BID, WE CANNOT SAY THAT THE PROCUREMENT WAS RENDERED LEGALLY DEFECTIVE THEREBY.

ACCORDINGLY, ON THE RECORD BEFORE US, WE HAVE NO ALTERNATIVE BUT TO DENY THE PROTEST.