B-158933, APR. 29, 1966

B-158933, APR. 29, 1966

TO THE GREAT LAKES DREDGE AND DOCK COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 12, 1966, AND TO YOUR SUPPLEMENTING LETTER OF APRIL 18, 1966, PROTESTING AGAINST THE ACTION OF THE EASTERN DIVISION, BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, IN REJECTING ALL BIDS RECEIVED ON A DREDGING PROJECT (MAINTENANCE) UNDER INVITATION FOR BIDS NO. NBY-70528, SPEC. NO. 70528/66, ISSUED MARCH 14, 1966, AND READVERTISING THE WORK UNDER REVISED SPECIFICATIONS.

THE INVITATION WAS ISSUED FOR BIDS ON (ITEM 1, THE COMPLETE PROJECT) DREDGING APPROXIMATELY 976,000 CUBIC YARDS (INCLUSIVE OF PERMISSIBLE OVERDEPTH DREDGING) OF MATERIAL (SPOIL) FROM TWO CHANNELS AND TWO TURNING BASINS AT THE U.S. NAVAL SUPPLY CENTER, BAYONNE, NEW JERSEY. UNDER ITEMS 2 AND 3 BIDS WERE SOLICITED ON THE BASIS OF OMISSIONS OF CERTAIN AREAS OF THE PROJECT, AND AS ITEM BIDDERS WERE REQUESTED TO SPECIFY THE ADJUSTMENT AMOUNT FOR EACH CUBIC YARD IN EXCESS OR LESS THAN THE QUANTITIES SPECIFIED UNDER THE FIRST 3 ITEMS.

THE DISPOSAL SPECIFICATIONS, WHICH MUST BE REGARDED AS THE BASIC FACTOR GIVING RISE TO THE SITUATION AT HAND, PROVIDED AS FOLLOWS:

"3.8 DISPOSAL OF EXCAVATED MATERIAL. EXCAVATED MATERIAL SHALL BE TRANSPORTED TO AND DEPOSITED ON DUMPING GROUNDS WHERE DIRECTED BY THE SUPERVISOR OF THE HARBOR OF NEW YORK AT AN AVERAGE DISTANCE NOT EXCEEDING 20 MILES OUT TO SEA. EXCEPT AS OTHERWISE AUTHORIZED IN WRITING, NO DUMPING WILL BE DONE UNLESS A GOVERNMENT INSPECTOR IS PRESENT AT THE TIME. BIDS SHALL BE BASED ON UTILIZING THE ABOVE DESCRIBED AREAS. IF, AFTER THE AWARD OF THE CONTRACT, A DISPOSAL AREA OTHER THAN THAT STIPULATED IN THESE SPECIFICATIONS IS PROPOSED, ALL EXPENSES INCURRED IN CONNECTION WITH PROVIDING AND MAKING AVAILABLE SUCH DISPOSAL AREAS SHALL BE BORNE BY THE CONTRACTOR AND ITS ACCEPTANCE WILL BE SUBJECT TO THE APPROVAL OF THE OFFICER IN CHARGE AND SUBJECT TO THE CONDITIONS OF THE CONTRACT. LOADED OR PARTIALLY LOADED SCOWS SHALL NOT BE REMOVED FROM THE DREDGE OR FROM THE NAVAL SUPPLY CENTER WITHOUT PERMISSION; THE OFFICER IN CHARGE SHALL BE NOTIFIED PROMPTLY WHEN SCOWS ARE RETURNED TO THE NAVAL SUPPLY CENTER.' NAVY HAS REPORTED THAT NO SHORE DISPOSAL AREAS FOR SPOIL WERE KNOWN TO IT AT THE TIME OF THE ISSUANCE OF THE INVITATION FOR BIDS.

THE FOLLOWING FOUR BIDS (ONLY ITEM 1 IS CONSIDERED RELEVENT) WERE RECEIVED AND OPENED AS SCHEDULED ON MARCH 31, 1966:

CHART

ITEM 1

ENTIRE WORK GAHAGAN DREDGING CORP.

$ 948,000 GREAT LAKES DREDGE AND DOCK CO. 951,600 THE ARUNDEL CORP.

1,141,920 AMERICAN DREDGING CO. 1,151,680

THE LOW BID OF GAHAGAN DREDGING CORPORATION WAS QUALIFIED BY AN ACCOMPANYING LETTER WHICH STATED:

"THE BID SUBMITTED HEREWITH IS BASED ON THE DISPOSAL OF ALL OR PART OF THE MATERIAL TO BE DREDGED IN THE BAYONNE PROPERTY BY HYDRAULIC METHOD IN ACCORDANCE WITH THE PERMIT AND TERMS OUTLINED IN LETTER ATTACHED HERETO WHICH FORMS PART OF OUR BID AND HAS BEEN DULY ACCEPTED AND AGREED TO BY THE CITY OF BAYONNE, NEW JERSEY.' IT IS FURTHER INDICATED THAT THE DREDGING EQUIPMENT OWNED BY GAHAGAN IS COMPRISED OF HYDRAULIC PIPELINE DREDGES ONLY AND THAT IT DOES NOT HAVE DIPPERS AND DUMP SCOWS ESSENTIAL FOR DISPOSAL AT SEA AS REQUIRED BY THE SPECIFICATIONS.

YOUR BID, WHICH WAS SECOND LOW, WAS CONSIDERED TO BE IN ORDER AND UNQUALIFIED. BY LETTER OF APRIL 1, 1966, YOU FORMALLY PROTESTED TO THE BUREAU OF YARDS AND DOCKS AGAINST ANY AWARD OF A CONTRACT TO GAHAGAN FOR THE REASON THAT ITS BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF SPECIFICATION 3.8, AND YOU THEREFORE REQUESTED THAT THE AWARD BE MADE TO YOUR FIRM. BY TELEGRAM OF THAT SAME DATE AMERICAN DREDGING COMPANY ALSO PROTESTED THAT GAHAGAN'S BID WAS NONRESPONSIVE TO THE SPECIFICATION REQUIREMENT FOR DUMPING THE SPOIL AT SEA AND REQUESTED THAT ALL BIDS BE REJECTED, IF HYDRAULIC DREDGING WAS TO BE PERMITTED FOR THE PROJECT, SO THAT AMERICAN COULD SUBMIT A BID BASED ON THE USE OF SUCH METHOD OF DREDGING.

IT IS REPORTED THAT THE BUREAU OF YARDS AND DOCKS SUBSEQUENTLY LEARNED THAT THE CITY OF JERSEY CITY, NEW JERSEY, WAS ALSO INTERESTED IN OBTAINING THE SPOIL TO BUILD UP SOME OF ITS LAND AREAS. A PORTION OF A LETTER ADDRESSED TO THE BUREAU OF YARDS AND DOCKS BY THE DIRECTOR OF JERSEY CITY READS AS FOLLOWS:

"DUE TO THE INCREASINGLY HIGH COST OF OBTAINING FILL BY ANY METHOD IN JERSEY CITY, WE WOULD APPRECIATE IT VERY MUCH IF IN THE EVENT GAHAGAN DREDGING CORPORATION IS AWARDED THE CONTRACT, THE U.S. NAVY WILL ALLOW GAHAGAN DREDGING CORPORATION TO DEPOSIT AS MUCH OF THE MATERIAL AS THEY DESIRE ON THIS TRACT OF LAND. AS IT IS NOW WRITTEN UP IN THE BIDDING DOCUMENTS, WE UNDERSTANDING THAT THE DEPOSITING OF THIS MATERIAL WILL BE WASTED AT SEA.' NAVY FURTHER STATES THAT AFTER CAREFUL CONSIDERATION THE CONTRACTING OFFICER (THE CHIEF, BUREAU OF YARDS AND DOCKS) DECIDED THAT ALL BIDS SHOULD BE REJECTED AND THE WORK READVERTISED BECAUSE OF THE DISCLOSURES THAT THE GENERALLY LESS EXPENSIVE HYDRAULIC METHOD OF DREDGING COULD BE USED WHICH PROMISED SUBSTANTIAL SAVINGS IN MEETING THE GOVERNMENT'S NEEDS, AND BECAUSE THE SPOIN WAS NEEDED BY THE LOCAL MUNICIPALITIES. IN ACCORDANCE WITH SUCH DECISION, WHICH WAS VIEWED AS BEING IN THE PUBLIC INTEREST, THE DIRECTOR, EASTERN DIVISION, BUREAU OF YARDS AND DOCKS, WAS AUTHORIZED TO REJECT ALL BIDS ON APRIL 5, 1966, AND A REPLACEMENT IFB, REVISED TO PERMIT USE OF EITHER MECHANICAL OR HYDRAULIC DREDGES, WAS ISSUED ON APRIL 7, 1966. THE OPENING DATE FOR BIDS RECEIVED UNDER THE SECOND IFB HAS BEEN EXTENDED TO MAY 3, 1966. SPECIFICATION 3.8 OF THAT IFB PROVIDES AS FOLLOWS:

"3.8 DISPOSAL OF EXCAVATED MATERIAL. - EXCAVATED MATERIAL MAY BE TRANSPORTED TO AND DEPOSITED ON DUMPING GROUNDS WHERE DIRECTED BY THE SUPERVISOR OF THE HARBOR OF NEW YORK AT AN AVERAGE DISTANCE NOT EXCEEDING 20 MILES OUT TO SEA, OR MAY BE DEPOSITED BY THE HYDRAULIC PROCESS IN DISPOSAL AREAS SELECTED BY THE CONTRACTOR, SUBJECT TO THE APPROVAL OF THE OFFICER IN CHARGE AND SUBJECT TO THE CONDITIONS OF THE CONTRACT. EXCEPT AS OTHERWISE AUTHORIZED IN WRITING, NO DUMPING WILL BE DONE UNLESS A GOVERNMENT INSPECTOR IS PRESENT AT THE TIME. IN DEPOSITING EXCAVATED MATERIAL BY THE HYDRAULIC PROCESS, THE CONTRACTOR SHALL PROVIDE AND MAINTAIN ALL NECESSARY BULKHEADS, DIKES, DITCHES, WEIRS, SPILLWAYS, AND ALL OTHER CONSTRUCTION NECESSARY TO CONFINE AND RETAIN THE FILL AND TO PREVENT AN UNDUE AMOUNT OF FINE MATERIALS FROM BEING CARRIED AWAY IN THE OVERFLOW. HYDRAULIC PIPE LINES SHALL BE ARRANGED IN AN APPROVED MANNER THAT WILL NOT INTERFERE WITH NORMAL ACTIVITIES OF THE NAVAL SUPPLY CENTER. LOADED OR PARTIALLY LOADED SCOWS SHALL NOT BE REMOVED FROM THE DREDGE OR FROM THE NAVAL SUPPLY CENTER WITHOUT PERMISSION; THE OFFICER IN CHARGE SHALL BE NOTIFIED PROMPTLY WHEN SCOWS ARE RETURNED TO THE NAVAL SUPPLY CENTER.'

YOU STATE THAT ON APRIL 7, 1966, YOU RECEIVED A LETTER DATED THE PREVIOUS DAY FROM THE BUREAU OF YARDS AND DOCKS ADVISING:

"* * * THE "CONTRACTING OFFICER HAS REJECTED ALL BIDS * * * AS BEING IN THE BEST INTEREST OF THE GOVERNMENT. THE SPECIFICATIONS ARE BEING REVISED TO ALLOW DREDGING BY EITHER MECHANICAL OR HYDRAULIC METHODS AND TO PROVIDE FOR DISPOSAL OF DREDGE MATERIALS ON ADDITIONAL DUMPING GROUNDS WHICH WERE PREVIOUSLY UNKNOWN TO THE GOVERNMENT. YOUR INTEREST IN SUBMITTING A BID FOR THIS PROJECT IS APPRECIATED. REPLY TO YOUR LETTER OF 1 APRIL 1966 WILL BE MADE AT AN EARLY DATE.'" ON FRIDAY, APRIL 8, 1966, YOU RECEIVED THE SECOND IFB MINUS THE SPECIFICATIONS WHICH WERE SUBSEQUENTLY RECEIVED BY YOU ON THE FOLLOWING MONDAY, APRIL 11.

ESSENTIALLY, YOU PROTEST AGAINST CANCELLATION OF THE FIRST IFB, WHICH ACTION PRESUMABLY DEPRIVED YOUR FIRM OF AN AWARD THEREUNDER, AND YOU APPEAR TO QUESTION THE VALIDITY OF ONE OF THE REASONS GIVEN FOR READVERTISING--- "TO PROVIDE FOR DISPOSAL OF DREDGE MATERIALS ON ADDITIONAL DUMPING GROUNDS WHICH WERE PREVIOUSLY UNKNOWN TO THE GOVERNMENT"--- INASMUCH AS YOU STATE "IT IS VERY SIGNIFICANT THAT NO SUCH ADDITIONAL SPOIL AREAS, PRESUMABLY NOW KNOWN TO THE GOVERNMENT, ARE SPECIFIED OR IDENTIFIED IN THE REVISED BIDDING DOCUMENTS.' REGARDING SUCH CONTENTION YOUR ATTENTION IS CALLED TO THE FOLLOWING NOTICE APPEARING NEAR THE BOTTOM OF THE FACE SHEET OF THE IFB (STANDARD FORM 20):

"NOTICE: THE CITY OF BAYONNE, NEW JERSEY AND JERSEY CITY, NEW JERSEY HAVE INDICATED THAT DISPOSAL AREAS ARE AVAILABLE.'

YOU FURTHER CONTEND THAT IT IS AN IMPROPER AND IRREGULAR PROCEDURE TO PERMIT CONTRACTORS TO SELECT AND BID ON ALTERNATE DISPOSAL AREAS, AND THAT DISPOSAL AREAS UNSPECIFIED BY THE GOVERNMENT SHOULD BE CONSIDERED ONLY AFTER AWARD. IN SUCH CONNECTION YOU REFER TO OUR DECISION OF APRIL 1, 1964, B-153004, WHEREIN WE DENIED A REQUEST BY GAHAGAN FOR CANCELLATION OF A DREDGING CONTRACT THAT HAD BEEN AWARDED TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER UNDER CONDITIONS OF A SOMEWHAT SIMILAR NATURE. YOU ALSO QUESTION THE PROBABILITY OF ANY SAVINGS ACCRUING TO THE GOVERNMENT BY REASON OF PERMITTING BIDDING ON THE BASIS OF HYDRAULIC DREDGING.

IN CONSIDERING THESE QUESTIONS IT SHOULD BE NOTED THAT THE RIGHT TO REJECT ALL BIDS IN THE PUBLIC INTEREST IS RESERVED TO THE GOVERNMENT (AND BY DELEGATION, TO THE CONTRACTING OFFICER) BY STATUTE (10 U.S.C. 2305 (C) (, BY REGULATION (ASPR 2-404), AND BY THE EXPRESS TERMS OF THE SUBJECT INVITATION WHICH PROVIDE UNDER PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22, INCORPORATED BY REFERENCE) THAT "THE GOVERNMENT MAY, WHEN IN ITS INTEREST, REJECT ANY OR ALL BIDS.' IN OUR DECISION OF APRIL 1, 1964, TO GAHAGAN, WHICH YOU CITE FOR OTHER PURPOSES, WE OBSERVED THAT OUR OFFICE HAS GENERALLY CONSIDERED SUCH ADMINISTRATIVE AUTHORITY TO BE EXTREMELY BROAD AND THAT WE WILL NOT QUESTION DETERMINATIONS IN CONNECTION THEREWITH EXCEPT WHEN REQUIRED TO DO SO BY COGENT OR COMPELLING REASONS.

ALTHOUGH YOU CITE THAT DECISION TO GAHAGAN AS SUPPORT FOR YOUR CONTENTION THAT CONSIDERATION SHOULD BE GIVEN TO ALTERNATE DISPOSAL AREAS ONLY AFTER AWARD, WE REFER YOU TO THE LAST PARAGRAPH OF SUCH DECISION AND TO OUR LETTER OF THE SAME DAY TO THE SECRETARY OF THE ARMY, REFERENCED THEREIN, WHICH IS PUBLISHED AT 43 COMP. GEN. 643. IN THAT LETTER WE RECOGNIZED THE POTENTIAL VALUE OF SPOIL AND THE STATED POLICY OF THE ARMY CORPS OF ENGINEERS TO SECURE THE MAXIMUM PRACTICABLE BENEFITS THEREOF BY EFFECTIVE UTILIZATION OF THE SPOIL WHEREVER POSSIBLE AND AT NO ADDITIONAL COST TO THE GOVERNMENT. SUCH USE WAS CONSIDERED TO BE A CONSERVATION MEASURE AND IN THE PUBLIC INTEREST. IN CONNECTION THEREWITH WE OBSERVED:

"ASIDE FROM THE BENEFITS SECURED THROUGH UTILIZATION OF THE DREDGED MATERIAL, IT APPEARS THAT FURTHER BENEFITS MAY BE REALIZED THROUGH THE BROADER COMPETITION WHICH MAY BE EXPECTED TO RESULT IF INVITATIONS PERMIT BIDDERS TO SUBMIT RESPONSIVE BIDS BASED UPON USE OF ALTERNATE DISPOSAL AREAS WHICH MAY BE KNOWN ONLY TO THE BIDDERS, AND WHICH WOULD PERMIT PERFORMANCE BY THE GENERALLY CHEAPER HYDRAULIC METHOD OF DREDGING.' ALSO EXPRESSED THEREIN THE VIEW THAT BENEFITS TO THE GOVERNMENT FROM USE OF ALTERNATE DISPOSAL AREAS CANNOT BE REFLECTED IN COMPETITIVE BID PRICES SUBMITTED UNDER AN INVITATION WHICH PRECLUDES CONSIDERATION OF SUCH AREAS UNTIL AFTER AWARD OF THE CONTRACT, AND WE RECOMMENDED THAT THE SECRETARY OF THE ARMY GIVE CONSIDERATION TO REVISING THAT DEPARTMENT'S EXISTING PROCUREMENT PROCEDURE SO AS TO PERMIT BIDDERS, WHENEVER PRACTICABLE, TO SUBMIT RESPONSIVE BIDS BASED UPON USE OF ALTERNATE DISPOSAL AREAS.

WE FIND NOTHING IN THE CASE AT HAND, NOR HAVE WE BEEN APPRISED SINCE THE ISSUANCE OF OUR ABOVE-REFERENCED LETTER TO THE SECRETARY OF THE ARMY OF ANY SITUATION ENCOUNTERED BY THAT DEPARTMENT, WHICH REQUIRES OR WARRANTS A REVISION OF OUR VIEWS AS EXPRESSED IN THAT LETTER. ACCORDINGLY, YOUR CONTENTION THAT IT IS IMPROPER TO PERMIT THE SUBMISSION OF RESPONSIVE DREDGING BIDS WHICH PROPOSE THE USE OF ALTERNATE OR UNSPECIFIED DISPOSAL AREAS FOR THE SPOIL MUST BE REJECTED.

OUR DECISIONS IN SUCH MATTERS SHOW COMPLETE ACCORD WITH YOUR VIEW THAT THE CANCELLATION OF AN IFB, AFTER OPENING OF BIDS WITHOUT AWARD TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER AND THEREAFTER READVERTISING THE PROCUREMENT, IS A SERIOUS MATTER WHICH CONFLICTS WITH THE BASIC PRINCIPLE OF THE COMPETITIVE ADVERTISING SYSTEM. HOWEVER, WE DO NOT FEEL AN AWARD MUST BE MADE UNDER THE ORIGINAL IFB IN EACH SUCH SITUATION IN ORDER TO PRESERVE THE INTEGRITY OF THE SYSTEM, INASMUCH AS THE BASIC PROCUREMENT STATUTES AND REGULATIONS RECOGNIZE THAT THE PUBLIC INTEREST MAY BE BEST SERVED IN SOME SITUATIONS BY THE REJECTION OF ALL BIDS. ALTHOUGH IT IS QUITE TRUE, AS POINTED OUT IN YOUR LETTER, THAT CANCELLATION OF IFBS SHOULD NOT BE INDISCRIMINATELY AND CAPRICIOUSLY JUSTIFIED AS "IN THE BEST INTEREST OF THE GOVERNMENT" (OR "PUBLIC INTEREST"), WE PERCEIVE NO EVIDENCE INDICATING THAT IT WAS SO USED BY THE CONTRACTING OFFICER IN THE SITUATION HERE CONCERNED. AS SET OUT ABOVE, THE ARMY CORPS OF ENGINEERS AND THE NAVY BUREAU OF YARDS AND DOCKS ARE OF THE VIEW THAT IT IS IN THE PUBLIC INTEREST TO UTILIZE VALUABLE SPOIL, WHENEVER PRACTICABLE, FOR LAND IMPROVEMENTS RATHER THAN TO WASTE IT BY DISPOSAL AT SEA, AND WE DO NOT FIND ANYTHING IN THE PRESENT RECORD WHICH REQUIRES A CONTRARY VIEW BY THIS OFFICE. WE CANNOT CONCLUDE THEREFORE THAT SUCH A DETERMINATION, AS WAS MADE IN THIS CASE, CONSTITUTES AN ABUSE OF THE RECOGNIZED BROAD AUTHORITY VESTED IN THE CONTRACTING OFFICER IN SUCH MATTERS. WHILE YOU EXPRESS DOUBT THAT SUBSTANTIAL SAVINGS CAN BE REALIZED BY THE GOVERNMENT IN PERMITTING BIDDING BASED ON THE USE OF HYDRAULIC DREDGES, WHICH WAS STATED BY THE CONTRACTING OFFICER TO BE AN ADDITIONAL REASON FOR CANCELING THE IFB, YOUR VIEW IN THAT RESPECT APPEARS TO BE PREMISED SOLELY ON THE FACT THAT GAHAGAN'S NONRESPONSIVE BID, USING HYDRAULIC DREDGES, WAS ONLY $3,600 LESS THAN YOUR BID. WE DO NOT CONSIDER SUCH FACTOR TO BE INDICATIVE OF THE PROBABLE SAVINGS THAT MAY RESULT FROM COMPETITIVE BIDS BASED ON A COMMON GROUND--- THAT IS, ON SPECIFICATIONS WHICH CLEARLY PERMIT USE OF THE GENERALLY CHEAPER HYDRAULIC METHOD OF DREDGING AND DEPOSIT OF THE SPOIL IN LAND AREAS WHICH ARE INDICATED TO BE AVAILABLE LOCALLY. RECOGNIZE THAT THE COST OF MECHANICAL DREDGING, AS COMPARED WITH HYDRAULIC DREDGING, IS DEPENDENT IN ANY GIVEN CASE UPON FACTORS SUCH AS THE CHARACTER OF THE MATERIAL BEING EXCAVATED, THE LOCATION OF THE DISPOSAL AREAS, THE QUANTITY OF THE MATERIAL AND THE AVAILABILITY OF MECHANICAL AND HYDRAULIC DREDGES AT THE TIME AND PLACE CALLED FOR BY THE WORK. REGARDING THE PRESENT PROCUREMENT, HOWEVER, THE BUREAU OF YARDS AND DOCKS REPORTS THAT IT CONSIDERS THE OPTION TO DREDGE AND TO DISPOSE OF SPOIL HYDRAULICALLY ON ADJACENT LAND AREAS PROMISES SUBSTANTIAL SAVINGS TO THE GOVERNMENT. ON THE BASIS OF THE INFORMATION OF RECORD WE CANNOT CONCLUDE THAT SUCH EXPECTATIONS ARE UNREASONABLE.

WITH REFERENCE TO OUR DECISION TO GAHAGAN OF APRIL 1, 1964, IT SHOULD BE NOTED THAT ALTHOUGH THE CIRCUMSTANCES THERE INVOLVED WERE SOMEWHAT SIMILAR TO THOSE HERE CONCERNED, THEY DIFFER IN ONE MATERIAL RESPECT IN THAT WE WERE ASKED BY GAHAGAN TO REQUIRE CANCELLATION OF A CONTRACT FOR URGENTLY NEEDED DREDGING WHICH HAD PREVIOUSLY BEEN AWARDED TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER. SUCH AN ACTION BY THIS OFFICE WOULD HAVE BEEN TAKEN ONLY UPON THE LEGAL PREMISE THAT ACCEPTANCE OF THE LOW BID DID NOT RESULT IN A VALID CONTRACT. IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES PRESENTED IN THAT CASE WE DID NOT CONSIDER THE CONTRACTING OFFICER'S DECISION TO AWARD THE CONTRACT AS BEING CLEARLY CONTRARY TO THE PUBLIC INTEREST OR IN VIOLATION OF LAW. A CANCELLATION OF THAT CONTRACT WOULD THEREFORE HAVE AMOUNTED TO A BREACH BY THE GOVERNMENT WHICH WOULD HAVE SUBJECTED THE GOVERNMENT TO LIABILITY FOR DAMAGES. WHEN, AS IN THAT CASE, WE ARE NOT CONVINCED THAT A COURT OF LAW WOULD FIND THE AWARD SO INCOMPATIBLE WITH GOVERNING STATUTES AND REGULATIONS AS TO RENDER THE CONTRACT A NULLITY, WE WILL NOT ATTEMPT TO INTERFERE WITH AN AWARDED CONTRACT. SEE 41 COMP. GEN. 788, 790 AND 44 ID. 221, 223.

ALTHOUGH FOR THE FOREGOING REASONS YOUR PROTEST MUST BE DENIED, WE ARE TODAY ASKING THE SECRETARY OF THE NAVY TO REVIEW AND, IF NECESSARY, AMEND THAT DEPARTMENT'S EXISTING PROCUREMENT PROCEDURES SO AS TO INSURE THAT BIDDERS IN FUTURE PROCUREMENTS ARE AFFORDED THE OPPORTUNITY WHENEVER PRACTICABLE TO INITIALLY SUBMIT BIDS BASED ON ACCOMPLISHING THE DESIRED DREDGING AND SATISFACTORILY DISPOSING OF THE SPOIL BY THE MOST ECONOMICAL MEANS AVAILABLE TO THEM.