B-156430, NOV. 2, 1965
Highlights
THE FACTS LEADING UP TO THE CANCELLATION AND THE READVERTISEMENT WERE FULLY SET FORTH IN THE DECISION OF JUNE 9. THEY WILL NOT BE REPEATED HERE. AS URGED IN YOUR PRESENT LETTER WE AGREE THAT IT WOULD HAVE BEEN PREFERABLE FOR STELMA. TO HAVE PROTESTED THE DATA REQUIREMENTS PRIOR TO THE OPENING OF BIDS AND THE REVEALMENT OF BID PRICES. THE CANCELLED INVITATION WAS UNFAIR AND PREJUDICIAL BECAUSE THE "NOTE" UNDER PROVISION W ON PAGE 55 OF THE BID SCHEDULE. SINCE UNDER THE PROVISIONS OF THE ABOVE "NOTE" STELMA OR ANY OTHER CONTRACTOR WHO USED HIS OWN CATALOG-STANDARD ITEMS WOULD HAVE HAD TO FURNISH MANUFACTURING INFORMATION AND DRAWINGS WHEREAS OTHER BIDDERS WHO DID NOT USE THEIR OWN CATAGOG-STANDARD ITEMS DID NOT.
B-156430, NOV. 2, 1965
TO METRO-TEL CORPORATION:
YOUR LETTER OF OCTOBER 19, 1965, FURTHER PROTESTS THE CANCELLATION OF INVITATION FOR BIDS NO. AMC (E/-36-039-65-306-5 (NO. 306-5) BASED ON "A TECHNICALITY.' THE FACTS LEADING UP TO THE CANCELLATION AND THE READVERTISEMENT WERE FULLY SET FORTH IN THE DECISION OF JUNE 9, 1965, B 156430, AND THE RECONSIDERATION THEREOF OF OCTOBER 15, 1965, AND THEY WILL NOT BE REPEATED HERE.
AS URGED IN YOUR PRESENT LETTER WE AGREE THAT IT WOULD HAVE BEEN PREFERABLE FOR STELMA, INCORPORATED, TO HAVE PROTESTED THE DATA REQUIREMENTS PRIOR TO THE OPENING OF BIDS AND THE REVEALMENT OF BID PRICES. AS POINTED OUT IN THE DECISION OF JUNE 9, 1965, AND THE RECONSIDERATION THEREOF OF OCTOBER 15, 1965, HOWEVER, THE CANCELLED INVITATION WAS UNFAIR AND PREJUDICIAL BECAUSE THE "NOTE" UNDER PROVISION W ON PAGE 55 OF THE BID SCHEDULE, REQUIRED CERTAIN MANUFACTURING INFORMATION FROM ONE OR MORE BIDDERS NOT REQUIRED OF OTHER BIDDERS. SINCE UNDER THE PROVISIONS OF THE ABOVE "NOTE" STELMA OR ANY OTHER CONTRACTOR WHO USED HIS OWN CATALOG-STANDARD ITEMS WOULD HAVE HAD TO FURNISH MANUFACTURING INFORMATION AND DRAWINGS WHEREAS OTHER BIDDERS WHO DID NOT USE THEIR OWN CATAGOG-STANDARD ITEMS DID NOT, IT IS CLEAR THAT THE INVITATION WAS PREJUDICIAL TO STELMA AND OTHER BIDDERS SIMILARLY SITUATED. THEREFORE, OUR OFFICE HAD NO ALTERNATIVE BUT TO AGREE WITH THE ADMINISTRATIVE ACTION IN CANCELLING THE INVITATION IN ORDER TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM WHICH REQUIRES THAT ALL BIDDERS BE GIVEN AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS.
REGARDING YOUR COMMENTS IN THE THIRD PARAGRAPH, PAGE ONE OF YOUR LETTER CONCERNING PRACTICES OF SOME BIDDERS WITH RESPECT TO THE DATA PRICING PROVISIONS PROVIDED FOR UNDER PARAGRAPH NO. 47 OF THE "ADDITIONAL GENERAL CONTRACTUAL PROVISIONS," SUCH PROVISIONS WERE MADE APPLICABLE TO ALL BIDDERS WHEREAS SOME OF THE PROVISIONS OF THE ABOVE "NOTE" WERE MADE APPLICABLE ONLY TO ONE OR MORE BIDDERS. THEREFORE, IT IS OBVIOUS THAT THE REQUIREMENTS OF THE "NOTE" DID NOT PERMIT COMPETITORS TO COMPETE ON A COMMON AND EQUAL BASIS AND THAT SUCH REQUIREMENTS WERE UNFAIR AND CREATED A SITUATION PREJUDICIAL TO ONE OR MORE BIDDERS.
IT IS HOPED THAT THE FOREGOING WILL HELP TO EXPLAIN THE REASONS FOR DENYING YOUR PROTEST.