B-142893, JUL. 25, 1960

B-142893, JUL. 25, 1960

TO TRAVELITE TRAILER COMPANY OF TEXAS:

WE REFER TO YOUR LETTER OF MAY 12, 1960, PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN REJECTING YOUR LOW BID UNDER IFB 25-600 -60-80 AND THE SUBSEQUENT AWARD OF A CONTRACT UNDER IFB 25-600-60-103.

THE RECORD SHOWS THAT INVITATION FOR BIDS NO. 25-600-60-80 WAS ISSUED ON MARCH 15, 1960, BY THE PROCURING ACTIVITY AT OFFUTT AIR FORCE BASE, NEBRASKA, AND CALLED FOR THE DELIVERY OF 24 RADAR BOMB SCORING TRAILERS TO FOUR SPECIFIED LOCATIONS. BIDS WERE OPENED ON APRIL 1, 1960, AND OF THREE BIDS RECEIVED THE LOWEST WAS SUBMITTED BY TRAVELITE TRAILER COMPANY OF TEXAS IN THE AMOUNT OF $188,495.38. THE OTHER TWO BIDS WERE IN THE AMOUNTS OF $272,044 AND $280,000. PAGE 4 OF THE INVITATION SPECIFIED DELIVERY ON DATES RANGING FROM MAY 15, 1960, THROUGH JUNE 30, 1960. BIDDERS WERE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED DELIVERY, AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED IN THE SCHEDULE WOULD BE REJECTED. TRAVELITE STATED THAT IT PROPOSED TO MEET THE SPECIFIED DELIVERY SCHEDULE "IF AWARD IS MADE ON OR BEFORE APRIL 15, 1960.' THE BIDDER NOTED IN ITS BID THAT IT WOULD ALLOW 15 CALENDAR DAYS FROM THE TIME OF BID OPENING FOR ACCEPTANCE OF ITS BID.

SOON AFTER BID OPENING THE TRAVELITE BID WAS SUBMITTED TO THE PROCUREMENT COMMITTEE AT AIR MATERIEL COMMAND FOR REVIEW AND APPROVAL. AT AMC, A QUESTION AROSE AS TO THE RESPONSIVENESS OF TRAVELITE'S BID, SINCE ITS BID WAS ACCOMPANIED BY TWO LETTERS WHICH WERE MADE PART OF THE BID, AND WHICH SET FORTH CERTAIN CHANGES TO THE SPECIFICATIONS AND DRAWINGS. TRAVELITE'S BID WAS THEN SENT TO THE STAFF JUDGE ADVOCATE'S OFFICE AT AMC FOR FURTHER REVIEW. BY LETTER DATED APRIL 19, 1960, TO THE BASE PROCUREMENT OFFICER, TRAVELITE STATED, IN EFFECT, THAT EVERY EFFORT WOULD BE MADE TO MAINTAIN THE ORIGINAL SCHEDULE BUT THAT DUE TO THE ADDITIONAL TIME REQUIRED TO EVALUATE THEIR PROPOSAL THEY REQUESTED THAT THE DELIVERY DATE BE EXTENDED TO CORRESPOND WITH THE ELAPSED TIME FROM APRIL 15 TO THE DATE OF AWARD. THE STAFF JUDGE ADVOCATE ON APRIL 21, 1960, IN CONSIDERING THE PROPRIETY OF ACCEPTING TRAVELITE'S BID, STATED AS FOLLOWS:

"1. PAGE 4 OF THE IFB CONTAINS A REQUIRED DELIVERY SCHEDULE. TRAVELITE BID "AS ABOVE, IF AWARD IS MADE ON OR BEFORE APRIL 15, 1960.' THIS CONDITION DOES NOT MODIFY THE IFB REQUIREMENTS SO AS TO RENDER THE BID NON -RESPONSIVE BUT SPECIFIES A MAXIMUM TIME FOR ACCEPTANCE AFTER WHICH THE REQUIRED DELIVERY CANNOT BE MET. BIDDER DID NOT AND UNDER THE TERMS OF THE IFB COULD NOT HAVE AGREED TO A LONGER DELIVERY SCHEDULE IF THE AWARD WERE DELAYED BEYOND APRIL 15TH. IT NATURALLY FOLLOWS THEREFORE THAT AFTER THIS DEADLINE PASSED, THE GOV T WAS UNABLE TO COMPLY WITH THE TERMS OF THE OFFER AND IT AUTOMATICALLY EXPIRED. ANY SUBSEQUENT EXTENSION OR RELAXATION OF THIS CONDITION BY TRAVELITE SUCH AS IN HIS LETTER OF 19 APRIL, WOULD AMOUNT TO NEGOTIATION WITH THE LOW BIDDER IN AN AREA NOT PERMITTED IN ADVERTISED PROCUREMENT.

"3. IN VIEW OF THE ABOVE, IT IS UNNECESSARY TO CONSIDER IN DETAIL THE PROBLEMS RAISED BY TRAVELITE'S ALTERNATES ON THE RIMS AND THE OTHER EXCEPTIONS AND DEVIATIONS TAKEN. SUFFICE IT TO SAY THAT WE HAVE SERIOUS MISGIVINGS ABOUT THE RESPONSIVENESS OF THE LOW BID BASED ON TWO RIMS IN THE FACE OF THE REQUIREMENT IN THE SPECIFICATION THAT "EACH RIM WILL BE OF A SINGLE ONE PIECE ASSEMBLY -------.' IN THE EVENT THAT IT IS DECIDED TO READVERTISE, CONSIDERATION SHOULD BE GIVEN TO DELETING THIS REQUIREMENT IF IT IS NOT NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOV-T.'

OF THE OTHER TWO BIDS RECEIVED, ONE BID SPECIFIED APRIL 5, 1960, AS THE LATEST DATE FOR ACCEPTANCE IN ORDER TO MEET THE REQUIRED DELIVERY SCHEDULE, AND THE OTHER SPECIFIED APRIL 8, 1960. BASED ON THE FOREGOING, IT WAS DECIDED TO CANCEL THE PROCUREMENT AND TO READVERTISE.

THE PROCUREMENT WAS READVERTISED ON APRIL 28, 1960, BY IFB 25-600 60-103, WHICH CONTAINED SOME CHANGES IN THE SPECIFICATIONS AND DESTINATION POINTS BUT CALLED ESSENTIALLY FOR THE SAME ITEM. IN THIS ADVERTISEMENT A LESS STRINGENT DELIVERY SCHEDULE WAS IMPOSED, IN THAT DELIVERY WAS REQUIRED WITHIN 60 DAYS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD. UNDER THE NEW INVITATION BIDS WERE OPENED ON MAY 9, 1960, AND IT WAS FOUND THAT THE ALF- HERMAN CORPORATION OF ST. LOUIS, MISSOURI, HAD SUBMITTED THE LOW BID IN THE AMOUNT OF $181,325.28, WHILE TRAVELITE COMPANY BID IN THE AMOUNT OF $190,282.38, WHICH WAS THE THIRD LOWEST OF FOUR BIDS RECEIVED. THE LOW AND SECOND LOW BIDDERS HAD NOT SUBMITTED BIDS ON THE ORIGINAL INVITATION. ON MAY 10, 1960, AN AWARD WAS MADE TO ALF-HERMAN CORPORATION. WE HAVE BEEN INFORMED THAT DUE TO THE EXTREME URGENCY OF THE PROCUREMENT THE ADMINISTRATIVE DEPARTMENT CONCERNED FOUND IT NECESSARY TO PROCEED WITH THE AWARD OF THE CONTRACT TO ALF-HERMAN DESPITE THE PROTEST.

TRAVELITE ALLEGES THAT THE GROSSLY ERRONEOUS REJECTION OF ALL BIDS UNDER THE EARLIER INVITATION, WHICH ENABLED SUBSEQUENT BIDDERS TO LEARN COMPETITORS' PRICES, SHOULD NOT BE PERMITTED IN THIS CASE SINCE IT WORKS TO THE DETRIMENT OF THE GOVERNMENT'S INTEREST IN MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. THE COMPANY URGES THE REJECTION OF ALL BIDS RECEIVED ON THE READVERTISEMENT, AND THE AWARD OF A CONTRACT TO IT ON ITS LOW BID ON THE ORIGINAL INVITATION.

WE HAVE OFTEN STATED THAT REJECTING ALL BIDS AFTER BID OPENING IS HARMFUL TO THE SYSTEM OF SEALED BIDDING AND SHOULD BE AVOIDED WHENEVER POSSIBLE. IN THE PRESENT CASE, HOWEVER, THE INFLEXIBLE DELIVERY PROVISIONS OF THE ORIGINAL INVITATION RESULTED IN THE SUBMISSION OF BIDS ON A VERY LIMITED ACCEPTANCE TIME BASIS. AFTER THE TIME SPECIFIED BY THE BIDDERS FOR ACCEPTANCE OF THEIR BIDS HAD PASSED WITHOUT AN AWARD, DUE IN PART TO THE NECESSITY OF DETERMINING RESPONSIVENESS OF YOUR BID, THE PROCURING OFFICE FELT COMPELLED TO REJECT ALL BIDS AND TO READVERTISE. 10 U.S.C. 2305 (C) PROVIDES FOR THE REJECTION OF ALL BIDS BY THE HEAD OF THE AGENCY IF IT IS DETERMINED THAT REJECTION IS IN THE PUBLIC INTEREST. IN THIS REGARD, IT IS NOTED THAT UNDER THE SUBSEQUENT INVITATION THE RESTRICTIVE FEATURES OF THE DELIVERY PROVISIONS WERE IN PART ELIMINATED AND A WIDER RESPONSE AT LOWER BID PRICES WAS RECEIVED IN COMPARISON TO THE ORIGINAL INVITATION.

IN VIEW OF THE CIRCUMSTANCES SET FORTH ABOVE, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE CANCELLATION OF THE INVITATION FOR BIDS INVOLVED AND, ACCORDINGLY, YOUR PROTEST MUST BE DENIED.