B-157700, JAN. 4, 1966

B-157700, JAN. 4, 1966

TO HALLEY, CORNELL AND WOLLENBERG:

RECEIPT OF YOUR LETTERS DATED NOVEMBER 19 AND 22, 1965, IS HEREBY ACKNOWLEDGED. YOU REQUEST THAT AWARD OF A CONTRACT FOR CUSTODIAL SERVICES BE MADE TO YOUR CLIENT, MR. ROBERT CECIL HOKE, UNDER INVITATION FOR BIDS NO. 04-602-65-143, AS THE NEXT LOWEST BIDDER AFTER CANCELLATION OF THE CONTRACT WITH COMMERCIAL BUILDING MAINTENANCE COMPANY WHICH WAS CONSUMMATED PURSUANT TO THE INVITATION IN LIEU OF READVERTISING. COMMERCIAL BUILDING MAINTENANCE COMPANY WAS FOUND TO HAVE BEEN A LARGE BUSINESS CONCERN AT THE TIME IT TENDERED A BID ON THIS TOTAL SMALL BUSINESS SET-ASIDE.

WE MUST INFORM YOU THAT THE PRIMARY RESPONSIBILITY FOR FULFILLING THE REQUIREMENTS OF THE GOVERNMENT RESTS UPON THE PROCURING AGENCIES THEMSELVES. THE ACCOUNTING OFFICERS OF THE UNITED STATES ARE WITHOUT AUTHORITY TO ORDER ADMINISTRATIVE OFFICIALS TO MAKE AWARD TO THE NEXT LOWEST BIDDER ON THE ORIGINAL INVITATION RATHER THAN TO READVERTISE. THE DISCRETION TO MAKE THIS DECISION RESTS, IN THIS CASE, WITH THE DEPARTMENT OF THE AIR FORCE WHICH HAS DETERMINED READVERTISEMENT TO BE IN THE BEST INTERESTS OF THE GOVERNMENT.

FURTHERMORE, SINCE THE INCUMBENT CONTRACTOR HAS BEEN PERFORMING ITS CONTRACTUAL DUTIES FOR A PERIOD OF ALMOST FIVE MONTHS, IT IS DOUBTFUL THAT THE GOVERNMENT COULD AT THIS LATE DATE ACCEPT YOUR CLIENT'S BID IN A MANNER WHICH WOULD RESULT IN A BINDING AND SUBSISTING CONTRACT. UNDOUBTEDLY THE OFFERS HAVE LONG SINCE EXPIRED. THE PURPOSES OF THE STATUTES GOVERNING FORMAL ADVERTISING WOULD BE NULLIFIED IF, IN A SITUATION SUCH AS THIS WHERE SO MUCH TIME HAS ELAPSED AFTER THE OPENING OF BIDS, THE GOVERNMENT COULD HAVE RECOURSE TO THE OFFER OF ANOTHER BIDDER ON THE ORIGINAL INVITATION INSTEAD OF SOLICITING COMPETITION AFRESH.

FOR THE REASONS STATED ABOVE WE WOULD NOT BE JUSTIFIED IN INTERFERING WITH THE ANNOUNCED INTENTION OF THE DEPARTMENT TO READVERTISE THE REQUIREMENT.