B-127599, APR. 20, 1956

B-127599: Apr 20, 1956

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IT IS STATED THAT ITEM 43 OF THE INSTRUCTIONS TO BIDDERS REQUIRED THAT EACH BIDDER FURNISH WITH HIS BID A STATEMENT AS TO WHETHER HE IS NOW OR EVER HAS BEEN ENGAGED IN ANY WORK SIMILAR TO THAT TO BE PERFORMED UNDER THE CONTRACT. THE YEAR OR YEARS IN WHICH THE WORK WAS PERFORMED. GIVING SUCH OTHER INFORMATION AS WILL TEND TO SHOW THE BIDDER'S ABILITY TO PROSECUTE THE REQUIRED WORK. IT IS CLAIMED THAT. BUNNINGTON OBJECTED TO THE AWARD OF THE CONTRACT BUT WAS TOLD THAT UNDER ITEM 41 OF THE INSTRUCTIONS TO BIDDERS THE GOVERNMENT RESERVED THE RIGHT TO WAIVE ANY DEFECT OR INFORMALITY IN THE BIDS RECEIVED. IT IS CLAIMED ALSO THAT A DECISION WAS MADE TO AWARD THE CONTRACT TO MR. MAY HAVE VERY FAR REACHING EFFECTS IN FUTURE BIDDING PROCEDURES.

B-127599, APR. 20, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

THERE HAS BEEN RECEIVED HERE A LETTER DATED APRIL 10, 1956, FROM HONORABLE HOWARD W. SMITH, HOUSE OF REPRESENTATIVES, REQUESTING THAT WE LOOK INTO THE MATTER OF THE AWARD OF A CONTRACT TO MR. WILIE P. MUNDY FOR THE REMOVAL OF APPROXIMATELY 50,000 CORDS OF STANDING TIMBER LOCATED AT CAMP A. P. HILL, BOWLING GREEN, VIRGINIA,PURSUANT TO INVITATION ENG-49-080 -56-7RE.

IT IS STATED THAT ITEM 43 OF THE INSTRUCTIONS TO BIDDERS REQUIRED THAT EACH BIDDER FURNISH WITH HIS BID A STATEMENT AS TO WHETHER HE IS NOW OR EVER HAS BEEN ENGAGED IN ANY WORK SIMILAR TO THAT TO BE PERFORMED UNDER THE CONTRACT, THE YEAR OR YEARS IN WHICH THE WORK WAS PERFORMED, AND THE MANNER OF ITS EXECUTION, AND GIVING SUCH OTHER INFORMATION AS WILL TEND TO SHOW THE BIDDER'S ABILITY TO PROSECUTE THE REQUIRED WORK. IT IS CLAIMED THAT, ALTHOUGH MR. MUNDY DID NOT SUBMIT THE REQUIRED INFORMATION WITH HIS BID, THE OTHER BIDDER, MR. DUNNINGTON WHO SUBMITTED AN IDENTICAL BID AS TO PRICE, FULLY COMPLIED WITH ALL THE REQUIREMENTS OF THE INVITATION. MR. BUNNINGTON OBJECTED TO THE AWARD OF THE CONTRACT BUT WAS TOLD THAT UNDER ITEM 41 OF THE INSTRUCTIONS TO BIDDERS THE GOVERNMENT RESERVED THE RIGHT TO WAIVE ANY DEFECT OR INFORMALITY IN THE BIDS RECEIVED. IT IS CLAIMED ALSO THAT A DECISION WAS MADE TO AWARD THE CONTRACT TO MR. MUNDY BY FLIPPING A COIN TO WHICH MR. DUNNINGTON ALSO OBJECTED. THE LETTER OF APRIL 10, 1956, CONTINUES AS FOLLOWS:

"I AM VERY MUCH AFRAID THAT THE AWARD OF THIS CONTRACT TO MR. MUNDY, MADE POSSIBLE ONLY BECAUSE THE CORPS OF ENGINEERS WAIVED HIS FAILURE TO COMPLY WITH HIS ABILITY TO PERFORM THE CONTRACT, MAY HAVE VERY FAR REACHING EFFECTS IN FUTURE BIDDING PROCEDURES.

"WHILE I AM AWARE OF THE ARMED SERVICES PROCUREMENT REGULATIONS WHICH PROVIDE, IN EFFECT, THAT DEFECTS CAN BE WAIVED WHEN IT IS NOT AGAINST THE BEST INTERESTS OF THE GOVERNMENT, NEVERTHELESS IT SEEMS TO ME THAT THE WAIVER OF A BID REQUIREMENT, ALL OTHER THINGS BEING EQUAL, SHOULD NEVER BE PERMITTED UNLESS THE WAIVER IS IN THE BEST INTERESTS OF THE GOVERNMENT.

"I AM CONCERNED, FURTHERMORE, THAT ON THE BASIS OF THIS PRECEDENT WHICH MAY BE ESTABLISHED BY THE DECISION IN THIS MATTER, POTENTIAL CONTRACTORS MAY HEREAFTER BID ON GOVERNMENT CONTRACTS WITHOUT ANY EXPERIENCE BACKGROUND OR FINANCIAL ABILITY TO FULFILL THE CONTRACT, AND THEN CLAIM THAT THEIR FAILURE TO COMPLY WITH THAT CLAUSE CAN BE WAIVED SO LONG AS THEY CAN THEREAFTER OBTAIN FINANCIAL BACKING OR CAN EMPLOY EXPERIENCED ASSISTANTS.'

PLEASE FURNISH A FULL REPORT WITH RESPECT TO THIS PROTEST, TOGETHER WITH A COPY OF THE INVITATION FOR BIDS, AN ABSTRACT OF THE BIDS RECEIVED AND A REFERENCE TO THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER, GIVING THE NUMBER AND DATE OF THE CONTRACT, IF AN AWARD NOW HAS BEEN MADE.

EVERY EFFORT SHOULD BE MADE TO FORWARD AN EARLY REPLY TO THIS REQUEST SO AS TO MINIMIZE THE CONSEQUENCES OF POSSIBLE CANCELLATION OF THE CONTRACT IN THE EVENT AN AWARD HAS BEEN MADE AND IT BE DETERMINED THAT THE ADMINISTRATIVE ACTION WAS IN ERROR.