B-160179, DEC. 12, 1966

B-160179, DEC. 12, 1966

TO MR. R. D. KILBY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1966, PROTESTING THE AWARD OF A CONTRACT UNDER ITEM NO. 115 OF SALES INVITATION FOR BIDS NO. 21 -7014 TO ANOTHER BIDDER SUBSEQUENT TO THE ISSUANCE OF A NOTICE OF AWARD TO YOU.

ITEM NO. 115 OF THE INVITATION OFFERED FOR SALE "1 LOT" OF "MISCELLANEOUS ELECTRIC AND/OR ELECTRONICS, SCRAP" HAVING AN ESTIMATED TOTAL WEIGHT OF 68,000 POUNDS. AFTER THE BIDS WERE OPENED ON AUGUST 30, 1966, IT WAS FOUND THAT YOUR BID IN THE AMOUNT OF $2,856 WAS THE HIGHEST RECEIVED ON ITEM NO. 115, AND AWARD THEREFOR WAS MADE TO YOU ON SEPTEMBER 2, 1966.

BECAUSE THE SALES AGENCY THEREAFTER WAS ON NOTICE OF A VALID PROTEST INVOLVING ITEM NO. 115, AMONG OTHERS, THE SALES CONTRACTING OFFICER DIRECTED THAT DELIVERY OF THOSE ITEMS BE WITHHELD PENDING OUR DECISION IN THE MATTER. UPON EXAMINATION OF ALL OF THE BIDS SUBMITTED UNDER THE PROTESTED ITEMS, IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR BID WAS NONRESPONSIVE IN THAT YOUR BID ON A "PER POUND" BASIS RATHER THAN ON A "LOT" BASIS AS CLEARLY REQUIRED BY THE INVITATION. IN VIEW THEREOF, THE AWARD MADE TO YOU WAS CANCELLED AND THE SUBJECT ITEM WAS AWARDED TO THE HIGHEST RESPONSIVE BIDDER. YOU CONTEND THAT THE SECOND AWARD WAS INVALID ON THE BASIS OF THE AWARD MADE TO YOU, AND THAT UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT, YOU SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO APPEAL THE CANCELLATION OF YOUR AWARD.

AS TO YOUR FIRST CONTENTION, 40 U.S.C. 484 (E) (2) PROVIDES AS FOLLOWS:

"/1) ALL DISPOSALS OR CONTRACTS FOR DISPOSAL OF SURPLUS PROPERTY (OTHER THAN BY ABANDONMENT, DESTRUCTION, DONATION, OR THROUGH CONTRACT BROKERS) MADE OR AUTHORIZED BY THE ADMINISTRATOR SHALL BE MADE AFTER PUBLICLY ADVERTISING FOR BIDS, * * *.

"/2) WHENEVER PUBLIC ADVERTISING FOR BIDS IS REQUIRED UNDER PARAGRAPH (1) OF THIS SUBSECTION---

"/A) THE ADVERTISEMENT FOR BIDS SHALL BE MADE AT SUCH TIME PREVIOUS TO THE DISPOSAL OR CONTRACT, THROUGH SUCH METHODS, AND ON SUCH TERMS AND CONDITIONS AS SHALL PERMIT THAT FULL AND FREE COMPETITION WHICH IS CONSISTENT WITH THE VALUE AND NATURE OF THE PROPERTY INVOLVED;

"/B) ALL BIDS SHALL BE PUBLICLY DISCLOSED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT;

"/C) AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED: PROVIDED, THAT ALL BIDS MAY BE REJECTED WHEN IT IS IN THE PUBLIC INTEREST TO DO SO.'

UNDER THIS STATUTE, A LEGAL AWARD OF A CONTRACT FOR SURPLUS PROPERTY WHICH HAD BEEN PREVIOUSLY OFFERED FOR SALE PURSUANT TO A FORMAL SALES INVITATION CAN BE MADE ONLY TO A RESPONSIVE BIDDER, THAT IS, ONE WHO HAS SUBMITTED A BID IN CONFORMANCE WITH THE ADVERTISED TERMS AND CONDITIONS. A BID WHICH DEVIATES IN ANY MATERIAL RESPECT FROM THOSE TERMS AND CONDITIONS MAY NOT BE PROPERLY CONSIDERED FOR AWARD SINCE, IN LEGAL EFFECT, SUCH A BID IS A COUNTEROFFER WHICH THE GOVERNMENT MAY NOT ACCEPT. WE HAVE HELD THAT A NONRESPONSIVE BID, SUCH AS WAS SUBMITTED HERE, MAY NOT BE ACCEPTED BUT MUST BE REGARDED AS CONTRARY TO THE CONDITIONS OF THE SALES INVITATION WHICH REQUIRED--- WITHOUT EXCEPTION--- "LOT" BIDS ONLY. B-140335, AUGUST 17, 1959; PARAGRAPH 3 OF THE SUBJECT INVITATION'S TERMS AND CONDITIONS. IN PARTICULAR, PART 3, CHAPTER VIII, C (17) AND (18) OF THE DEFENSE DISPOSAL MANUAL PROVIDE IN PART:

"17. RESPONSIVE BIDS.

A. TO BE CONSIDERED AS RESPONSIVE, BIDS MUST CONFORM TO THE PROVISIONS OF THE APPROPRIATE INVITATION FOR BIDS. FOR EXAMPLE, BIDS MUST BE BASED UPON THE UNIT SPECIFIED FOR THE ITEM/S) AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM, * * *.

"18. NONRESPONSIVE BIDS. BIDS WHICH FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS ARE CONSIDERED NONRESPONSIVE. GENERALLY, BIDS DEVIATING FROM THE PROVISIONS OF THE INVITATION FOR BIDS WHICH AFFECT EITHER THE PRICE, QUALITY, QUANTITY OR DELIVERY OF THE ARTICLE OFFERED FOR SALE ARE NON-RESPONSIVE. ALL SUCH BIDS WILL BE REJECTED * * *.'

THE DISPUTES PROCEDURES PRESCRIBED BY PARAGRAPH 15 OF THE GENERAL SALE TERMS AND CONDITIONS APPLY TO DISPUTES CONCERNING "A QUESTION OF FACT ARISING UNDER THIS CONTRACT.' THE ,RESPONSIVENESS" OF A BID TO THE TERMS AND CONDITIONS OF A FORMAL ADVERTISEMENT IS ONE OF LAW DEPENDENT UPON CONSIDERATION OF THE APPLICABLE ADVERTISING STATUTE. SINCE WE HOLD THAT NO "LEGAL" AWARD COULD HAVE BEEN MADE TO YOU, THERE WAS NO RESULTING LEGALLY AWARDED CONTRACT UNDER WHICH THE DISPUTES PROCEDURES COULD BE INVOKED.