B-126211, JAN. 9, 1956

B-126211, JAN. 9, 1956

TO J. F. DUSMAN COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25, 1955, PROTESTING THE ACTION OF THE BUREAU OF PRISONS IN DISREGARDING YOUR BID ON SPECIFICATIONS FOR CONVERTING 15 PROJECTION SYSTEMS TO THE USE OF CINEMASCOPE TYPE PICTURES SUBMITTED IN RESPONSE TO INVITATION NO. 4201 ISSUED AUGUST 31, 1955, BY THE PROCUREMENT SECTION, BUREAU OF PRISONS, DEPARTMENT OF JUSTICE. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 20, 1955, STATING THAT YOU WERE ADVISED BY A MR. DURHAM OF THE BUREAU OF PRISONS THAT NONE OF THE REASONS PREVIOUSLY GIVEN YOU BY MR. WILLIAMS FOR REJECTING YOUR LOW BID WERE TRUE AND THAT YOUR BID WAS REALLY REJECTED BECAUSE YOU DID NOT BID ON FURNISHING A SCREEN WITH STAGGERED HOLES. YOU REQUEST THAT THE CONTRACT BE AWARDED TO YOU WITHOUT DELAY.

IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, REPORTS THAT IT WAS DETERMINED ADMINISTRATIVELY TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND READVERTISE ON THE BASIS OF REVISED SPECIFICATIONS FOR REASONS AS FOLLOWS:

"1. NONE OF THE BIDDERS COMPLETELY MET THE SPECIFICATIONS.

"2. THERE WAS CONFUSION AMONG THE BIDDERS AS TO THE SCREENS REQUIRED. ONE BIDDER QUOTED ON SCREENS ALONE. ANOTHER BIDDER QUOTED ON A HIGHER PRICED SCREEN THAT WAS NOT REQUIRED. J. F. DUSMAN QUOTED ON A SCREEN THAT WOULD NOT MEET THE SPECIFICATIONS, MAKING A POINT THAT THE SCREENS HE PROPOSED TO FURNISH WOULD FILL OUR NEEDS. ATTENTION IS CALLED TO THE FACT THAT OUR AUDITORIUMS ARE USED FOR ACTIVITIES IN ADDITION TO THE SHOWING OF MOVIES. OPERATING CONDITIONS ARE NOT IDEAL. OUR SPECIFICATIONS WERE CAREFULLY DRAWN TO MEET OUR REQUIREMENTS.

"3. THERE WAS A CHANGE IN OUR REQUIREMENTS. AT THREE OF OUR INSTITUTIONS, A BACK WINDOW IN THE AUDITORIUM IS COVERED WHEN THE SCREEN IS IN PLACE. FOR THESE INSTITUTIONS IT WILL BE NECESSARY TO PROVIDE A ROLL UP TYPE SCREEN, SO THAT IT CAN BE MOVED OUT OF THE WAY WHEN THE AUDITORIUM IS USED FOR OTHER PURPOSES, PARTICULARLY FOR CHAPEL SERVICES.

"4. THERE WAS A PRICE REDUCTION ON LENS. MR. DUSMAN MAKES THE POINT THAT HE HAD INCLUDED THIS REDUCTION. IT WAS NOT APPARENT FROM HIS BID THAT THIS WAS THE CASE. INDICATIONS ARE THAT HIS BID DID NOT REFLECT FULLY THIS REDUCTION.'

IT IS REPORTED ALSO THAT THE ADVERTISED SPECIFICATIONS ARE BEING STUDIED AND THAT YOU WILL BE INVITED TO REVIEW THEM BEFORE A NEW INVITATION FOR BIDS IS ISSUED.

AN INVITATION TO BID ON GOVERNMENT PROCUREMENTS DOES NOT IMPOSE UPON THE GOVERNMENT ANY BINDING OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS HAVE HELD REPEATEDLY THAT, IRRESPECTIVE OF ANY RESERVATION ON THE PART OF THE GOVERNMENT TO REJECT ANY AND ALL BIDS, A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BID. 17 COMP. GEN. 554; 26 ID. 49; PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, 6 F.SUPP. 761; SCOTT V. UNITED STATES, 44 C.CLS. 524; COLORADO PAVING CO. V. MURPHY, 78 F. 28. THE DUTY OF MAKING SUCH DETERMINATIONS LIES WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY AND IN THE ABSENCE OF CLEAR PROOF OF ABUSE OF THEIR DISCRETIONARY POWERS IN THAT REGARD THIS OFFICE WILL NOT UNDERTAKE TO INTERFERE WITH THE ACTION BASED THEREON.

ALTHOUGH WE HAVE NO FIRST-HAND INFORMATION AS TO WHY YOUR BID WAS REJECTED, THE FACT THAT THERE MAY BE A DISPUTE AS TO THE REASONS FOR REJECTION OF ALL BIDS WOULD NOT SEEM MATERIAL IN THIS INSTANCE. THE ADMINISTRATIVE AGENCY DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND TO READVERTISE ON THE BASIS OF REVISED SPECIFICATIONS. THE ACTION THUS TAKEN WAS IN ACCORDANCE WITH THE RIGHT RESERVED BY THE GOVERNMENT AND THE EXERCISE OF THAT RIGHT IS NOT SUBJECT TO REVIEW BY OUR OFFICE, IN THE ABSENCE OF FRAUD OR BAD FAITH AMOUNTING TO FRAUD.

ACCORDINGLY, ON THE RECORD BEFORE US, YOUR PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY OUR OBJECTING TO THE ADMINISTRATIVE ACTION.