B-130017, JAN. 14, 1957

B-130017: Jan 14, 1957

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TO PIERRE CONSTRUCTORS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. THE CONTRACTOR WILL BE ASSIGNED PLANT AND CONSTRUCTION AREAS OR CONSTRUCTION RIGHT-OF-WAY LIMITS AS SHOWN ON THE "AREA USE" DRAWING FOR USE IN THE PROSECUTION OF WORK UNDER THIS CONTRACT. HE WILL BE REQUIRED TO DO THE FOLLOWING: "A. WHERE THE ADDITIONAL REQUIRED AREA IS OWNED OR CONTROLLED BY THE GOVERNMENT. THE AREA MAY BE ASSIGNED TO THE CONTRACTOR UPON REQUEST PROVIDED THE AREA IS NOT NEEDED FOR OTHER PURPOSES AND PROVIDED THERE IS NO ADDITIONAL COST TO THE GOVERNMENT. * * *" IT APPEARS FROM A REPORT FROM THE DEPARTMENT OF THE ARMY THAT YOUR FIRM WAS ALREADY ENGAGED IN THE PERFORMANCE OF ANOTHER CONTRACT ON THE SAME PROJECT.

B-130017, JAN. 14, 1957

TO PIERRE CONSTRUCTORS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1956, PROTESTING THE AWARD FOR CONSTRUCTION OF OUTLET WORKS, STAGE V-CONTROL SUPERSTRUCTURES, PURSUANT TO INVITATION FOR BIDS NO. CIVENG-25-066-57 30 TO ANY OTHER BIDDER.

PARAGRAPH SC-29D OF THE SPECIAL CONDITIONS TO THE INVITATION STATES: "AREAS A1 AND A2-PLANT AREA. ASSIGNED FOR USE UNDER THIS CONTRACT.' DRAWING M020-30E403 ATTACHED TO THE INVITATION SHOWS THE LOCATION OF AREAS A1 AND A2 AND CONTAINS THE FOLLOWING NOTE: "A1 A2-PLANT AREAS. ASSIGNED FOR USE UNDER THIS CONTRACT.' PARAGRAPH SC-21 OF THE SPECIFICATIONS, PROVIDES IN PART AS FOLLOWS:

"SC-21. CONSTRUCTION RIGHT-OF-WAY. THE CONTRACTOR WILL BE ASSIGNED PLANT AND CONSTRUCTION AREAS OR CONSTRUCTION RIGHT-OF-WAY LIMITS AS SHOWN ON THE "AREA USE" DRAWING FOR USE IN THE PROSECUTION OF WORK UNDER THIS CONTRACT, SUBJECT TO THE PROVISION OF PARAGRAPH GC-4. IN THE EVENT THAT THE CONTRACTOR FINDS IT NECESSARY TO UTILIZE FOR ANY PURPOSE WHATSOEVER ADDITIONAL RIGHT-OF-WAY, PLANT OR CONSTRUCTION AREA FOR THE PERFORMANCE OF THIS CONTRACT, HE WILL BE REQUIRED TO DO THE FOLLOWING:

"A. WHERE THE ADDITIONAL REQUIRED AREA IS OWNED OR CONTROLLED BY THE GOVERNMENT, THE AREA MAY BE ASSIGNED TO THE CONTRACTOR UPON REQUEST PROVIDED THE AREA IS NOT NEEDED FOR OTHER PURPOSES AND PROVIDED THERE IS NO ADDITIONAL COST TO THE GOVERNMENT. * * *"

IT APPEARS FROM A REPORT FROM THE DEPARTMENT OF THE ARMY THAT YOUR FIRM WAS ALREADY ENGAGED IN THE PERFORMANCE OF ANOTHER CONTRACT ON THE SAME PROJECT. IT WAS APPARENTLY YOUR INTENTION TO USE THE CONCRETE PLANT AND OTHER FACILITIES ON THE EXISTING JOB IN ITS PRESENT LOCATION WHICH WAS NOT IN THE DESIGNATED PLANT AREA IN CARRYING OUT THE ANTICIPATED CONTRACT SHOULD IT BE AWARDED TO YOU. IN YOUR BID, THEREFORE, YOU STATED "PLANT AND PERTINENT FACILITIES TO REMAIN IN ITS PRESENT LOCATION FOR LIFETIME OF THIS CONTRACT.'

BIDS WERE OPENED ON NOVEMBER 15, 1956. ON NOVEMBER 28, 1956, THE DISTRICT ENGINEER ADVISED YOU THAT HE PROPOSED TO REJECT YOUR LOW BID BECAUSE OF THE QUALIFICATION QUOTED ABOVE. YOU PROTESTED THE PROPOSED REJECTION BY TELEGRAM OF DECEMBER 1 AND BY LETTER OF DECEMBER 4, 1956. THE SECOND LOW BIDDER, OAHE CONSTRUCTORS, ALSO PROTESTED THE AWARD TO ANY OTHER BIDDER AND ORALLY ADVISED THE DISTRICT ENGINEER THAT IT HAD INCLUDED A CONTINGENCY IN ITS BID TO COVER THE POSSIBLE COST OF MOVING ITS CONSTRUCTION PLANT AND EQUIPMENT WHICH WAS THEN IN USE IN ANOTHER AREA OF THE SAME PROJECT TO THE AREA ASSIGNED FOR USE UNDER THE NEW CONTRACT. OAHE CONSTRUCTORS FURTHER STATED THAT HAD IT NOT BEEN FOR THIS CONTINGENCY, ITS BID WOULD HAVE BEEN LOW.

THE DEPARTMENT OF THE ARMY REPORT INDICATES THAT THE GOVERNMENT DOES NOT CONTEMPLATE THE USE OF EITHER OF THE AREAS IN WHICH YOUR EQUIPMENT AND THAT OF OAHE CONSTRUCTORS IS NOW SITUATED UNTIL THE ENTIRE PROJECT IS COMPLETED. IT FURTHER STATES THAT THE DEPARTMENT DID NOT INTEND TO INDICATE THAT PLANT AND EQUIPMENT MIGHT HAVE TO BE MOVED BY THE CONTRACTOR FROM ITS PRESENT POSITION ON THE SITE OF THE PROJECT TO THE LOCATION DESIGNATED AS "PLANT AREA" IN PARAGRAPH SC-29D AND DRAWING M020-30E403. THE QUALIFICATION OF YOUR BID AND THE POSITION OF OAHE CONSTRUCTORS CLEARLY INDICATES THAT THE QUOTED PROVISIONS OF THE INVITATION AND ACCOMPANYING PAPERS AS ORIGINALLY DRAWN WERE MISLEADING. FOR THESE REASONS THE DEPARTMENT OF THE ARMY HAS NOW DETERMINED TO REJECT ALL BIDS AND READVERTISE. THIS DETERMINATION WAS MADE IN ADHERENCE TO THE PURPOSES OF THE LAWS REQUIRING THE LETTING OF PUBLIC CONTRACTS THROUGH FORMAL ADVERTISING, ONE OF WHICH IS TO INSURE THE GOVERNMENT THE ADVANTAGES OF FULL AND FREE COMPETITION. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, AFFIRMING 27 F.SUPP. 909. IT IS ELEMENTARY THAT SUCH COMPETITION CANNOT BE OBTAINED WHERE THE LANGUAGE OF THE INVITATION MAY MISLEAD BIDDERS.

THE HEADS OF AGENCIES OF THE DEPARTMENT OF DEFENSE ARE AUTHORIZED BY 10 U.S.C. 2305 (B), 70A STAT. 130 (FORMERLY SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23) TO REJECT ALL BIDS WHEN IT IS DETERMINED THAT SUCH REJECTION IS IN THE PUBLIC INTEREST. THUS, THE DECISION TO REJECT ALL BIDS IS LARGELY WITHIN THE DISCRETION OF THE AGENCY HEAD. IN THE ABSENCE OF CLEAR PROOF OF ABUSE OF SUCH DISCRETION--- AND THERE IS NO SHOWING THEREOF IN THE INSTANT MATTER--- THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE ADMINISTRATIVE ACTION TAKEN.