B-130177, JAN. 24, 1957

B-130177, JAN. 24, 1957

TO STAR WOOLEN COMPANY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 28, 1956, FROM YOUR ATTORNEY, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED NOVEMBER 14, 1956, WHICH DISALLOWED YOUR CLAIM FOR $9,345.60 DAMAGES ALLEGED TO HAVE BEEN SUSTAINED BY REASON OF THE FAILURE OF THE GOODYEAR ENGINEERING CORPORATION, OPERATORS OF THE INDIANA ARSENAL, HOOSIER UNIT, TO AWARD YOU THE FIRST ITEM ON INVITATION ISSUED JUNE 18, 1956, 22-56 GEG, COVERING THE PROPOSED SALE OF APPROXIMATELY 24,000 POUNDS OF NATURAL SILK CUTTINGS AND RELATED SCRAP MATERIALS, AS THEREIN DESCRIBED. A SECOND ITEM COVERING 4,000 POUNDS OF DYED RED SILK ALSO WAS OFFERED FOR SALE BY THE INVITATION.

IT APPEARS THAT YOUR BID WAS $14,680.80, ON THE FIRST ITEM AND $1,808 ON THE SECOND ITEM, OR AN AGGREGATE OF $16,488.80. THE SUCCESSFUL BIDDER, THE HALE MANUFACTURING CO., BID $14,640 FOR THE FIRST ITEM, AND $2,080 FOR THE SECOND ITEM. HALE ALSO SUBMITTED IN ITS BID A PRICE OF $16,828 TO COVER THE PURCHASE OF BOTH ITEMS. THUS, WHILE YOUR BID FOR ITEM ONE WAS HIGHER THAN HALE'S BID, THE LATTER'S BID OF $16,828 FOR BOTH ITEMS WAS MORE THAN THE AGGREGATE OF YOUR BIDS FOR THE TWO ITEMS, AND EXCEEDED THE AGGREGATE OF YOUR BID FOR THE FIRST ITEM AND THE HALE BID FOR THE SECOND ITEM.

NOTWITHSTANDING THE FOREGOING, IT IS YOUR POSITION THAT AS YOU WERE THE HIGHEST BIDDER ON THE FIRST ITEM, THE AWARD THEREOF SHOULD HAVE BEEN MADE TO YOU. YOU CONTEND THAT THE SELLING AGENCY WAS REQUIRED TO MAKE THE AWARDS TO THE HIGHEST BIDDER ON EACH INDIVIDUAL LOT OF MATERIALS OFFERED BY REASON OF THE DIRECTION TO BIDDERS ON THE FACE OF THE INVITATION TO "BID ON EACH ITEM SEPARATELY.' ALSO YOU CONTEND THAT THE AWARD TO HALE OF THE TWO LOTS BASED UPON ITS "COMBINED BID OF $16,828.00," WAS IMPROPER BECAUSE THE INVITATION DID NOT CALL FOR, OR AUTHORIZE, SUCH A BID.

WE THINK THERE IS NO MERIT IN EITHER OF THESE CONTENTIONS. THE REQUIREMENT THAT BIDDERS "BID ON EACH ITEM SEPARATELY" APPARENTLY WAS FOR THE PURPOSE OF FACILITATING THE EVALUATION OF BIDS; BUT, IN ANY EVENT, SUCH LANGUAGE CANNOT REASONABLY BE CONSTRUED AS IMPOSING UPON THE GOVERNMENT THE OBLIGATION TO AWARD BY ITEM ONLY. MOREOVER, BY THE EXPRESS TERMS OF THE INVITATION THE SELLING AGENCY RESERVED THE UNEQUIVOCAL RIGHT TO "ACCEPT OR REJECT ANY PART OR ALL OF YOUR BID AT PRICES QUOTED.' THE HALE BID COVERING BOTH LOTS IS SIMILAR TO SO CALLED "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS. IT HAS CONSISTENTLY BEEN HELD BY THIS OFFICE THAT ,ALL OR NONE" BIDS ARE FOR CONSIDERATION EVEN IF THERE IS NO PROVISION THEREFOR IN THE INVITATION FOR BIDS. ALSO, AN AWARD OF ALL LOTS TO ONE BIDDER, WHERE NO MORE ADVANTAGEOUS PRICE MAY BE OBTAINED OTHERWISE, IS NOT OBJECTIONABLE. 35 COMP. GEN. 383, 385.

ASIDE FROM THE FOREGOING, AND EVEN ASSUMING THE IMPROPRIETY OF THE ADMINISTRATIVE ACTION TAKEN HERE, THERE IS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM. IT IS FIRMLY SETTLED THAT STATUTES GOVERNING THE AWARDING OF CONTRACTS BY GOVERNMENTAL AGENCIES AS A RESULT OF PUBLIC BIDDING ARE ENACTED FOR THE BENEFIT OF THE PUBLIC WHO ARE SERVED BY THESE AGENCIES, AND NOT FOR THE BENEFIT OF THE BIDDERS AND, THEREFORE, THE GOVERNMENT IS NOT ANSWERABLE IN DAMAGES FOR VIOLATION OF THE PROVISIONS OF SUCH STATUTES. PERKINS V. LUKENS STEEL CO., 310 U.S. 113; ROYAL SUNDRIES CORP. V. UNITED STATES, 112 F.SUPP. 244; O-BRIEN V. CARNEY, 6 F.SUPP. 761; UNITED STATES V. NEW YORK AND PUERTO RICO STEAMSHIP CO., 239 U.S. 88.

WE, THEREFORE, PERCEIVE NO VALID REASON FOR ANY DEPARTURE FROM THE CONCLUSION REACHED IN THE SETTLEMENT OF NOVEMBER 14, 1956.

IN VIEW OF THE FOREGOING, WE THINK IT IS CLEAR THAT AN ORAL HEARING RELATIVE TO THE CLAIM, AS REQUESTED BY YOUR ATTORNEY, WOULD SERVE NO USEFUL PURPOSE. HOWEVER, SHOULD IT BE DESIRED, ARRANGEMENTS MAY BE MADE FOR AN INTERVIEW WITH A REPRESENTATIVE OF OUR OFFICE BY CALLING ALBERT GOLDSTEIN, ASSISTANT GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL, EXECUTIVE 3-4621, EXTENSION 3557.