B-126428, FEB. 9, 1956

B-126428: Feb 9, 1956

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TO THE HONORABLE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER DATED JANUARY 25. IT IS REPORTED THAT FOLLOWING THE CANCELLATION OF ALL BIDS BECAUSE OF WHAT WAS THEN CONSIDERED A LACK OF FUNDS FOR THE PROJECT. IT WAS LATER DETERMINED THAT AUTHORITY EXISTED FOR THE TRANSFER OF FUNDS FROM ANOTHER APPROPRIATION. THE PROCUREMENT WAS REINSTATED AND AWARD WAS SUBSEQUENTLY MADE TO HAROLD S. WHO WAS SO ADVISED ON JANUARY 6. WE WILL INTERPOSE NO OBJECTION TO THE ACTION TAKEN IN THIS CASE. THERE IS ENCLOSED A COPY OF OUR DECISION DATED NOVEMBER 1. INSOFAR AS ANY LEGAL BINDING EFFECT WAS CONCERNED. IT IS OUR VIEW THAT THE GENERAL RULE ENUNCIATED IN THE ENCLOSED DECISION OF NOVEMBER 1.

B-126428, FEB. 9, 1956

TO THE HONORABLE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JANUARY 25, 1956, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION OF YOUR DEPARTMENT, CONCERNING THE PROTEST OF HAROLD S. SMITH AND SON, IN CONNECTION WITH INVITATION FOR BIDS NO. 41-602 -56-40, ISSUED AT THE BERGSTROM AIR FORCE BASE, TEXAS.

IT IS REPORTED THAT FOLLOWING THE CANCELLATION OF ALL BIDS BECAUSE OF WHAT WAS THEN CONSIDERED A LACK OF FUNDS FOR THE PROJECT, IT WAS LATER DETERMINED THAT AUTHORITY EXISTED FOR THE TRANSFER OF FUNDS FROM ANOTHER APPROPRIATION. IN VIEW THEREOF, THE PROCUREMENT WAS REINSTATED AND AWARD WAS SUBSEQUENTLY MADE TO HAROLD S. SMITH AND SON, WHO WAS SO ADVISED ON JANUARY 6, 1956.

WE WILL INTERPOSE NO OBJECTION TO THE ACTION TAKEN IN THIS CASE. HOWEVER, THERE IS ENCLOSED A COPY OF OUR DECISION DATED NOVEMBER 1, 1955, B-124619, WHEREIN WE CONCLUDED THAT GENERALLY THE REJECTION OF ALL BIDS OR OFFERS AMOUNTED TO A COMPLETE ABOLITION OF SUCH BIDS AND, INSOFAR AS ANY LEGAL BINDING EFFECT WAS CONCERNED, PLACED THE PARTIES IN THE SAME POSITION AS IF NO OFFERS HAD EVER BEEN MADE. HENCE, A SUBSEQUENT OFFER BY ANY OF THE REJECTED OFFERORS, REGARDLESS OF WHETHER THE OFFER BE FROM THE LOWEST ORIGINAL BIDDER, MUST PROPERLY BE REGARDED AS THE SUBMISSION OF AN ENTIRELY NEW BID, AND ITS ACCEPTANCE WOULD AMOUNT TO A DIRECT NEGOTIATION WITH SUCH BIDDER AND WOULD RESULT IN A FORECLOSURE OF CONSIDERATION OF PROPOSALS FROM EITHER THE REJECTED OR OTHER BIDDERS.

IT IS OUR VIEW THAT THE GENERAL RULE ENUNCIATED IN THE ENCLOSED DECISION OF NOVEMBER 1, 1955, SHOULD BE ADHERED TO FOR THE OBVIOUS PURPOSE OF AVOIDING AN INDEFENSIBLE POSITION AGAINST PROTESTS OF OTHER PARTICIPATING BIDDERS.