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B-164721, NOV. 21, 1968

B-164721 Nov 21, 1968
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THE SUBJECT IFB WAS ISSUED ON APRIL 25. SIX BIDS WERE RECEIVED AND OPENED ON MAY 27. THE LOW BID WAS REJECTED FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE COMMUNICATION EQUIPMENT AS REQUIRED BY THE SUBJECT IFB. THE CONTRACTING OFFICER NOTIFIED YOU THAT THE SUBJECT INVITATION WAS CANCELLED DUE TO HIS FINDING THAT NO RESPONSIBLE OR RESPONSIVE OFFERS WERE RECEIVED. YOU HAVE TAKEN THE POSITION THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIVENESS CONCERNING THE HARRISON BID WAS ERRONEOUS AND THAT OUR OFFICE SHOULD DIRECT THE AWARD OF THIS PROCUREMENT TO HARRISON. HE FURTHER STATED THAT THE PROTECTIVE GUARD SERVICES WERE NO LONGER NEEDED BECAUSE SUCH SERVICES WERE CURRENTLY BEING PERFORMED IN-HOUSE AND THERE WERE NO PLANS AT THE PRESENT TIME TO OBTAIN THE SERVICES BY CONTRACT.

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B-164721, NOV. 21, 1968

TO SMITH, CURRIE AND HANCOCK:

WE REFER TO YOUR LETTER OF AUGUST 2, 1968, WITH ENCLOSURES, WHEREIN YOU PROTEST ON BEHALF OF HARRISON SECURITY SERVICES, INC. (HARRISON), THE CONTRACTING OFFICER'S REJECTION OF ITS LOW BID AS NONRESPONSIVE TO INVITATION FOR BIDS (IFB) NO. DABC 13-68-B-0089, ISSUED BY HUNTER ARMY AIRFIELD, GEORGIA. BY YOUR SUPPLEMENTAL LETTER OF OCTOBER 29, 1968, YOU OBJECT TO THE SUBSEQUENT CANCELLATION OF THIS PROCUREMENT.

THE SUBJECT IFB WAS ISSUED ON APRIL 25, 1968, TO SOLICIT BIDS FOR PROTECTIVE GUARD SERVICES UNDER A 100 PERCENT SMALL BUSINESS SET ASIDE. SIX BIDS WERE RECEIVED AND OPENED ON MAY 27, 1968. HARRISON SUBMITTED A LOW BID FOR THE AMOUNT OF $623,340.00. HOWEVER, THE LOW BID WAS REJECTED FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE COMMUNICATION EQUIPMENT AS REQUIRED BY THE SUBJECT IFB, CONFORMED TO THE GOVERNMENT SPECIFICATIONS. THE DESCRIPTIVE LITERATURE DISCLOSED THAT THE "VOICE COMMANDER" WALKIE-TALKIE HAD A SPURIOUS EMISSION RATING OF -43 DB, WHEREAS THE GOVERNMENT'S SPECIFICATIONS CALLED FOR A SPURIOUS EMISSION RATING OF - 45 DB, AND THIS TWO DECIBEL DIFFERENCE RESULTED IN THE CONTRACTING OFFICER'S REJECTION OF THE LOW BID. IN A LETTER DATED JUNE 23, 1968, THE CONTRACTING OFFICER NOTIFIED YOU THAT THE SUBJECT INVITATION WAS CANCELLED DUE TO HIS FINDING THAT NO RESPONSIBLE OR RESPONSIVE OFFERS WERE RECEIVED.

IN YOUR LETTER OF AUGUST 2, 1968, WITH ENCLOSURES, YOU HAVE TAKEN THE POSITION THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIVENESS CONCERNING THE HARRISON BID WAS ERRONEOUS AND THAT OUR OFFICE SHOULD DIRECT THE AWARD OF THIS PROCUREMENT TO HARRISON. YOU ALSO REQUESTED AN OPPORTUNITY TO RESPOND TO THE AGENCY'S REPORT.

IN A LETTER DATED OCTOBER 18, 1968, THE DIRECTOR OF MATERIEL ACQUISITION, DEPARTMENT OF THE ARMY, AGREED WITH YOUR CONTENTION THAT THE "TWO DECIBEL DIFFERENCE" DOES NOT CONSTITUTE SUFFICIENT GROUNDS FOR DETERMINATION OF NONRESPONSIVENESS. HOWEVER, HE FURTHER STATED THAT THE PROTECTIVE GUARD SERVICES WERE NO LONGER NEEDED BECAUSE SUCH SERVICES WERE CURRENTLY BEING PERFORMED IN-HOUSE AND THERE WERE NO PLANS AT THE PRESENT TIME TO OBTAIN THE SERVICES BY CONTRACT.

YOUR REBUTTAL LETTER DATED OCTOBER 29, 1968, STATES YOUR CONTENTION THAT IN ORDER TO INSURE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, WE SHOULD DIRECT THE AGENCY TO AWARD THE CONTRACT TO HARRISON UNDER THE SUBJECT IFB. YOU URGE THIS ACTION NOTWITHSTANDING THE FACT THAT THE PROTECTIVE GUARD SERVICES IN QUESTION WERE NO LONGER REQUIRED BY THE ARMY.

YOUR ATTENTION IS INVITED TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1, WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

"/B) * * * INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT---

"/III) THE SUPPLIES OR SERVICES BEING PROCURED ARE NO LONGER REQUIRED; *

MOREOVER, STANDARD FORM 33A, INCORPORATED BY REFERENCE IN THE IFB, EXPRESSLY RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL BIDS RECEIVED UNDER THE INVITATION, AND THE CONTROLLING STATUTE, 10 U.S.C. 2305 (C), SPECIFICALLY AUTHORIZES REJECTION OF ALL BIDS IF SUCH ACTION IS DETERMINED BY THE HEAD OF THE AGENCY TO BE IN THE PUBLIC INTEREST.

WE ARE FULLY AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITION'S PRICES IS A SERIOUS MATTER AND SUCH ACTION SHOULD NOT BE TAKEN EXCEPT FOR COGENT REASONS. IT IS OBVIOUS, HOWEVER, THAT CONTRACTING OFFICERS NOT ONLY HAVE THE RIGHT TO REJECT BIDS ON SUPPLIES OR SERVICES WHICH ARE NO LONGER NEEDED, BUT WOULD BE DERELICT IN THEIR DUTY IF THEY DID NOT DO SO. SEE B-159865, OCTOBER 6, 1966; B- 162914, JANUARY 30, 1968. IN ADDITION, IN THIS SITUATION, THE DISCLOSURE OF BID PRICES DOES NOT APPEAR TO BE PREJUDICIAL IN ANY MATERIAL WAY.

IN VIEW OF THE FACT THAT THE PROTECTIVE GUARD SERVICES ARE NO LONGER NEEDED, THE PROCUREMENT OF SUCH SERVICES WOULD BE CONTRARY TO THE INTEREST OF THE UNITED STATES AND THE INDIVIDUAL TAXPAYERS. THEREFORE, PURSUANT TO ASPR AND OUR DECISIONS CITED, WE FIND NO LEGAL OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN, AND YOUR PROTEST MUST BE DENIED.

WITH RESPECT TO THE FURTHER CONTENTIONS IN YOUR LETTER OF OCTOBER 29, THAT DENIAL OF A CONTRACT TO HARRISON WOULD NOT ONLY BE INEQUITABLE, IMPROPER AND UNFAIR, BUT WOULD ALSO DISCREDIT AND COMPROMISE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, YOUR ATTENTION IS INVITED TO THE PRINCIPLE ESTABLISHED BY NUMEROUS DECISIONS OF THE COURTS THAT THE STATUTES REGULATING THE AWARD OF PUBLIC CONTRACTS ARE DESIGNED FOR THE PROTECTION OF THE GOVERNMENT, AND THAT NO BIDDER HAS OR CAN ACQUIRE A JUSTICIABLE LEGAL RIGHT TO AWARD OF A CONTRACT. SEE FRIEND V LEE, 221 F.2D 96; UNITED STATES V BROOKRIDGE FARMS, 111 F.2D 461; UNITED STATES EX REL BROOKFIELD CONSTRUCTION CO. V STEWART, 234 F.SUPP. 94. THE RULES GENERALLY FOR CONSIDERATION IN MAINTAINING AND PRESERVING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM ARE DESIGNED PRIMARILY TO INSURE EQUALITY AND IMPARTIALITY IN TREATMENT OF BIDDERS, NOT TO CONFER ON BIDDERS RIGHTS SUPERIOR OR PREJUDICIAL TO THE INTERESTS OF THE GOVERNMENT.

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