B-145959, AUG. 29, 1961

B-145959: Aug 29, 1961

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TO FANNER MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 25. THE BIDS RECEIVED UNDER INVITATION DS-5531 WERE OPENED ON MARCH 29. THOSE RECEIVED UNDER INVITATION DS-5519 WERE OPENED ON MARCH 30. ALTHOUGH THE MANUFACTURING PLANTS OF THE BIDDERS WERE AT WIDELY SEPARATED LOCATIONS AND THE BIDS WERE EVALUATED ON THE BASIS OF DELIVERY AT THE JOB SITES. NO IDENTICAL BIDS WERE RECEIVED FOR TWO SCHEDULES. IN THE REMAINING FOURTEEN SCHEDULES THERE WERE 108 BIDS RECEIVED. 77 OF WHICH WERE IDENTICAL TO ONE OR MORE OTHER BIDS. THERE WERE A TOTAL OF 34 BIDS RECEIVED UNDER THE TWO INVITATIONS AND 24 OF THOSE BIDS WERE IDENTICAL TO OTHER BIDS. YOU HAVE PROTESTED THAT SINCE YOUR FIRM WAS LOW BIDDER FOR SCHEDULES 7 AND 8 OF BOTH INVITATIONS AND DID NOT SUBMIT BIDS THAT WERE IDENTICAL WITH ANY OTHERS.

B-145959, AUG. 29, 1961

TO FANNER MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 25, 1961, PROTESTING THE ACTION OF THE BUREAU OF RECLAMATION IN REJECTING ALL BIDS ON SCHEDULES 7 AND 8 OF INVITATIONS DS-5519 AND DS-5531.

THE TWO INVITATIONS CALLED FOR BIDS ON TRANSMISSION LINE MATERIALS AND EACH CONTAINED EIGHT SEPARATE SCHEDULES FOR THE DIFFERENT TYPES OF MATERIALS REQUIRED. THE BIDS RECEIVED UNDER INVITATION DS-5531 WERE OPENED ON MARCH 29, 1961, AND THOSE RECEIVED UNDER INVITATION DS-5519 WERE OPENED ON MARCH 30, 1961. ALTHOUGH THE MANUFACTURING PLANTS OF THE BIDDERS WERE AT WIDELY SEPARATED LOCATIONS AND THE BIDS WERE EVALUATED ON THE BASIS OF DELIVERY AT THE JOB SITES, AN ANALYSIS OF THE BIDS DISCLOSED A HIGH DEGREE OF IDENTICAL BIDDING. NO IDENTICAL BIDS WERE RECEIVED FOR TWO SCHEDULES, NO. 2 IN EACH INVITATION, BUT IN THE REMAINING FOURTEEN SCHEDULES THERE WERE 108 BIDS RECEIVED, 77 OF WHICH WERE IDENTICAL TO ONE OR MORE OTHER BIDS. FOR SCHEDULES 7 AND 8, THERE WERE A TOTAL OF 34 BIDS RECEIVED UNDER THE TWO INVITATIONS AND 24 OF THOSE BIDS WERE IDENTICAL TO OTHER BIDS.

AFTER CAREFULLY CONSIDERING THE BIDS FOR THE FOURTEEN SCHEDULES IN WHICH IDENTICAL BIDDING OCCURRED, THE COMMISSIONER OF RECLAMATION DETERMINED THAT THE PREPONDERANCE OF IDENTICAL BIDS INDICATED THAT THE BIDS HAD NOT BEEN ARRIVED AT INDEPENDENTLY AND THAT TRUE COMPETITIVE BIDDING HAD NOT BEEN ACHIEVED, AND THAT THE BEST INTEREST OF THE GOVERNMENT WOULD BE SERVED BY REJECTING ALL BIDS UNDER THE FOURTEEN SCHEDULES AND READVERTISING THE REQUIREMENTS UNDER REVISED INVITATIONS, INCLUDING A RECENTLY ADOPTED NONCOLLUSIVE BIDDING CLAUSE.

YOU HAVE PROTESTED THAT SINCE YOUR FIRM WAS LOW BIDDER FOR SCHEDULES 7 AND 8 OF BOTH INVITATIONS AND DID NOT SUBMIT BIDS THAT WERE IDENTICAL WITH ANY OTHERS, YOU SHOULD RECEIVE AWARDS ON THE BASIS OF YOUR ORIGINAL BIDS. OTHERWISE, YOU CONTEND THAT BIDDERS WHO SUBMITTED IDENTICAL PRICES ARE BEING HELPED BECAUSE THEIR COSTS WERE NOT REVEALED TO THE EXTENT THAT YOUR COSTS WERE.

OUR OFFICE HAS RECOGNIZED THAT REJECTION OF ALL BIDS AFTER OPENING IS A SERIOUS MATTER WHICH MAY OPERATE TO THE DISADVANTAGE OF SOME OR ALL BIDDERS WHOSE BIDS ARE EXPOSED, BUT WE HAVE HELD THAT REJECTION OF ALL BIDS AND READVERTISING IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION WHICH WE MAY NOT PROPERLY DISTURB UNLESS THE ADMINISTRATIVE CONCLUSION IS UNSUPPORTED BY SUBSTANTIAL GROUNDS. 26 COMP. GEN. 364. THE ADVERTISING STATUTES, WHICH CONTEMPLATE THAT THE UNITED STATES WILL RECEIVE THE BENEFIT OF FULL AND OPEN COMPETITION, WERE ENACTED FOR THE PROTECTION OF THE INTERESTS OF THE UNITED STATES AND NOT FOR THE BENEFIT OR PROTECTION OF BIDDERS. PERKINS V. LUKENS STEEL COMPANY (1939), 310 U.S. 113, 126.

IN THIS CASE, THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS BY PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF BOTH INVITATIONS. EVEN IN THE ABSENCE OF SUCH A RESERVATION, A REQUEST FOR BIDS DOES NOT IMPORT AN OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, INCLUDING THE LOWEST RESPONSIVE BID. O-BRIEN V. CARNEY (1934), 6 F.SUPP. 761; COLORADO PAVING COMPANY V. MURPHY (1897), 78 F. 28.

WHILE WE ARE INCLINED TO AGREE WITH YOUR CONTENTION THAT YOUR BID ON THE ORIGINAL INVITATION PROPERLY COULD HAVE BEEN ACCEPTED, WE DO NOT BELIEVE THAT THE VALIDITY OF THE AWARD SUBSEQUENTLY MADE CAN BE QUESTIONED. ARE, HOWEVER, ADVISING THE SECRETARY OF THE INTERIOR OF OUR OPINION THAT IN FUTURE CASES OF THIS NATURE, IN THE ABSENCE OF SOME INDICATION OF COMPLICITY ON THE PART OF THE LOW BIDDER, HIS BID IF FAIR AND REASONABLE SHOULD ORDINARILY NOT BE REJECTED MERELY BECAUSE OF IDENTICAL BIDS BY OTHER BIDDERS.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION IN THIS MATTER.

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

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