Spotless Janitorial Services, Inc.

B-295620, Spotless Janitorial Services, Inc., February 18, 2005

Decision

Matter of: Spotless Janitorial Services, Inc.

File: B-295620

Date: February 18, 2005

J. Raymond Sparrow, Esq., for the protester.

Patricia D. Graham, Esq., Department of Energy, for the agency.

John L. Formica, Esq., and Jerold D. Cohen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected the protesters bid as nonresponsive where the bid, as modified, stated that it was proprietary and was not to be disclosed publicly.

DECISION

Spotless Janitorial Services, Inc. protests the rejection of its bid submitted in response to invitation for bids (IFB) No. DE-FB01-05ME66932, issued by the Department of Energy, for custodial work at the agencys Forrestal Building and adjacent child care center in Washington, D.C.

We deny the protest.

The IFB, issued electronically on the agencys Industry Interactive Procurement System (IIPS) web-site, sought bids for the performance of custodial, snow removal, insect and rodent control, window washing, utility work and window blind cleaning services. IFB B.1. The IFB provided that bids had to be submitted electronically through the agencys IIPS web site, with the exception of [b]onds and other documentation that cannot be submitted electronically. Specific instructions for the preparation of electronic bids were included in the IFB, and the solicitation also directed bidders to the IIPS web-site where they could access the solicitation, register their firms, and access further instructions regarding submission of their bids. The solicitation, while specifying that bids had to be submitted electronically through the IIPS web-site, added that bids may be modified or withdrawn by written or telegraphic notice. IFB E.1., E.3.

The record reflects that Spotless responded to the solicitation through the IIPS web-site on the day before bid opening, and that three other firms responded to the IFB electronically by the time set for bid opening. According to the agency, while it received complete bid submissions through the IIPS from the three other bidders, the submission received from Spotless was incomplete because, among other things, it did not include a completed standard form (SF) 1449, Solicitation/Contract/Order for Commercial Items, as required by the solicitation. [1]

The record reflects that a representative of Spotless arrived at the place for bid opening shortly before bid opening was to occur, and hand-delivered to the contracting officer a completed SF 1449 and bid schedule, as well as Spotlesss bid bond, certificate of insurance, references, and corporate information. Protesters Comments at 5. The protesters hand-delivered SF 1449 included the following handwritten notation:

Confidential & Privileged: Not subject to disclosure under the Freedom of Information Act, 5 U.S.C. Section 552, et seq. This document contains trade secrets & commercial & financial information obtained from Spotless Janitorial Services, Inc. is privileged & confidential.

AR, Tab 12, Spotless Hand-Delivered documents. The hand-delivered bid schedule included a nearly identical notation, differing only in that it specifically stated that the confidential and privileged notation applied to all pricing.

The contracting officer read a statement at the bid opening, informing bidders that the bids received shall now be publicly read aloud, and that an examination of a copy of each bid received shall be permitted. AR, Bid Opening Script. The contracting officer added that [t]he bid submitted by [S]potless Janitorial Services is rejected as non-responsive as the firm states that the pricing may not be disclosed to the public. Id.

Spotless protests that its bid should not have been rejected as nonresponsive, arguing that it did in fact submit a completed SF 1449 through the IIPS the day before bid opening was to occur. With regard to the SF 1449 and bid schedule that it hand-delivered to the agency on the day of bid opening, the protester asserts that the agency should not have accepted or considered those documents because, according to Spotless, bidders were only permitted by the IFB to submit bids through the IIPS. Protest at 6, n.1; Protesters Comments at 4.

Contrary to the protesters assertion, the IFB expressly provided for the submission of hand-delivered, written modifications to bids. Specifically, the solicitation stated, as mentioned previously, that bids may be modified or withdrawn by written or telegraphic notice. IFB at 72. Accordingly, the agencys acceptance and consideration of the hand-written SF 1449 and bid schedule, hand-delivered by Spotless the day of, but prior to, bid opening, was proper. Because of this, whether the agency previously received Spotlesss SF 1449 through the IIPS, as asserted by the protester, or whether Spotlesss IIPS submission was incomplete because it did not include an SF 1449, as asserted by the agency, need not be decided. Under either scenario, as explained below, Spotlesss bid was properly rejected by the agency as nonresponsive.

Federal Acquisition Regulation 14.402-1 requires the public opening of unclassified bids. Our Office has interpreted the requirement for a public opening to mean that the bid must publicly disclose the essential nature and type of products offered and those elements of the bid that relate to price, quantity, and delivery terms, since the purpose of publicly opening bids is to protect both the public interest and the bidders from any form of fraud, favoritism, or partiality, and to leave no room for suspicion. VACAR Battery Mfg. Co., Inc. , B-223244.2, June 30, 1986, 86-2 CPD 21. Therefore, we have held that restricting the disclosure of a bid renders it nonresponsive. Id. Given that Spotlesss hand-delivered, written SF 1449 and bid schedule properly were accepted by the agency as explained above, and expressly provided that the documents were not to be disclosed publicly, the agency correctly rejected Spotlesss bid as nonresponsive.

The protest is denied.

Anthony H. Gamboa
General Counsel

[1] The form includes the basic information about the acquisition ( e.g. , solicitation number, issuing activity, and schedule of supplies and services), and signature blocks for the parties--for the bidders use upon submission, and for the contracting officer upon award, if the bid is successful.