B-124673, SEP. 15, 1955

B-124673: Sep 15, 1955

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TO TECON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEFAX RECEIVED JULY 15. THE BID SCHEDULE CONTAINED SPACES IN WHICH PRICES WERE TO BE ENTERED FOR THE VARIOUS ITEMS OF THE WORK. INCLUDING ADDITIVE SCHEDULES WHICH DESCRIBED CERTAIN WORK TO BE INCLUDED IN THE CONTRACT PROVIDED SUFFICIENT FUNDS WERE AVAILABLE. BIDS WERE REQUESTED UNDER ITEMS 2 AND 2/A) OF SCHEDULE I FOR CONSTRUCTION OF A RUNWAY AND TAXIWAY. THE UNIT PRICE SCHEDULE CONTAINED A NOTE WHICH WAS AS FOLLOWS: "BIDS MUST BE ENTERED FOR ALL ITEMS WITHIN SCHEDULES BID. EXTENSIONS WILL BE SUBJECT TO VERIFICATION BY THE GOVERNMENT. THE UNIT PRICE WILL BE CONSIDERED THE BID. OF THE BIDS RECEIVED PETER KIEWIT'S BID ON ITEM 2 FOR FLEXIBLE TYPE PAVEMENT WAS THE LOWEST RECEIVED.

B-124673, SEP. 15, 1955

TO TECON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX RECEIVED JULY 15, 1955, PROTESTING THE ACTION OF THE DEPARTMENT OF THE ARMY IN AWARDING A CONTRACT TO ANOTHER BIDDER FOR AIR FIELD PAVING, GRADING AND JET FUEL STORAGE FACILITIES PURSUANT TO INVITATION NO. ENG-25-066-55-91, ISSUED MAY 20, 1955, BY THE DISTRICT ENGINEER, OMAHA, NEBRASKA.

THE INVITATION REQUESTED BIDS FOR PERFORMING THE WORK AT THE MINOT AIR FORCE BASE, MINOT, NORTH DAKOTA. THE BID SCHEDULE CONTAINED SPACES IN WHICH PRICES WERE TO BE ENTERED FOR THE VARIOUS ITEMS OF THE WORK, INCLUDING ADDITIVE SCHEDULES WHICH DESCRIBED CERTAIN WORK TO BE INCLUDED IN THE CONTRACT PROVIDED SUFFICIENT FUNDS WERE AVAILABLE.

BIDS WERE REQUESTED UNDER ITEMS 2 AND 2/A) OF SCHEDULE I FOR CONSTRUCTION OF A RUNWAY AND TAXIWAY, ONE WITH FLEXIBLE AND THE OTHER WITH RIGID TYPE PAVEMENT. THE UNIT PRICE SCHEDULE CONTAINED A NOTE WHICH WAS AS FOLLOWS:

"BIDS MUST BE ENTERED FOR ALL ITEMS WITHIN SCHEDULES BID. TOTAL LUMP SUM BIDS SUBMITTED WITHOUT BIDS ENTERED ON INDIVIDUAL ITEMS MAY BE REJECTED. EXTENSIONS WILL BE SUBJECT TO VERIFICATION BY THE GOVERNMENT. IN CASE OF VARIATION BETWEEN THE UNIT PRICE AND THE EXTENSION, THE UNIT PRICE WILL BE CONSIDERED THE BID. BIDDERS BIDDING SCHEDULE I MUST ALSO BID SCHEDULES II AND III INCLUDING ADDITIVE SCHEDULES.'

OF THE BIDS RECEIVED PETER KIEWIT'S BID ON ITEM 2 FOR FLEXIBLE TYPE PAVEMENT WAS THE LOWEST RECEIVED. HE DID NOT QUOTE PRICES ON ITEM 2/A) FOR RIGID TYPE PAVEMENT. THE CHIEF OF ENGINEERS DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONSIDER THE KIEWIT BID ON ITEM 2 IN VIEW OF THE SAVINGS TO THE GOVERNMENT OF SOME $157,000, AND THAT ITEM WAS AWARDED TO PETER KIEWIT ON JUNE 30, 1955.

YOU QUESTION THE VALIDITY OF THE CONTRACT ON THE GROUND THAT THE BID WAS RESPONSIVE TO THE INVITATION IN THAT THE BIDDER DID NOT QUOTE PRICES ON ITEM 2/A) OF THE BID SCHEDULE, AS REQUESTED BY THE NOTE QUOTED ABOVE.

ALTHOUGH BIDDERS WERE ADVISED THAT THEY MUST BID ON ALL SCHEDULES, INCLUDING THE ADDITIVE SCHEDULES, THEY WERE FURTHER ADVISED THAT BIDS NOT COMPLYING WITH THIS REQUEST "MAY BE REJECTED," NOT THAT THEY WOULD BE REJECTED. FURTHERMORE, THE GOVERNMENT WAS UNDER NO OBLIGATION TO AWARD A CONTRACT FOR ALL ITEMS BID ON BY A BIDDER. IT EXPRESSLY RESERVED THE RIGHT TO ACCEPT OR REJECT ANY OR ALL ITEMS OF ANY BID UNLESS THE BIDDER QUALIFIED HIS BID BY SPECIFIC LIMITATION. THE GOVERNMENT ALSO EXPRESSLY RESERVED THE RIGHT "TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHEN SUCH WAIVER IS IN THE INTEREST OF THE GOVERNMENT.'

ITEMS 2 AND 2/A) WERE DESIGNATED TO OBTAIN BIDS ON TWO TYPES OF PAVING MATERIAL BUT THERE WAS NO REQUIREMENT THAT EITHER OR BOTH ITEMS BE AWARDED TO ANY PARTICULAR BIDDER. AS THE FLEXIBLE TYPE PAVEMENT WAS SELECTED BY THE GOVERNMENT AND AS PETER KIEWIT'S BID ON THAT TYPE WAS THE LOWEST RECEIVED, NO REASON IS APPARENT WHY THE ACCEPTANCE OF THAT BID WAS IMPROPER OR WAS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS.

ACCORDINGLY, IT MUST BE HELD THAT YOUR PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO WARRANT ANY ..END :