B-130530, MAR. 28, 1957

B-130530: Mar 28, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. THAT THE GOVERNMENT'S REQUIREMENTS FOR THESE ITEMS WERE SET FORTH CLEARLY IN THE INVITATION. SINCE YOU WERE THE ONLY BIDDER WHO QUOTED CORRECTLY THEREON. READING IN PERTINENT PART AS FOLLOWS: "INVITATION TO BID NO. 132 WAS ISSUED BY THIS HEADQUARTERS ON 14 DECEMBER 1956. BIDS WERE SOLICITED FROM TWENTY-EIGHT FIRMS. OPENING OF THE BIDS WAS HELD ON 15 JANUARY 1957 WITH FOUR BIDS BEING RECEIVED ON ITEM 1 AND THREE ON ITEM 2. THIS COULD HAVE BEEN INTERPRETED AS FOUR HANDLES TO A SET. THE DESCRIPTIONS FOR THESE TWO ITEMS WERE CONSIDERED TO BE AMBIGUOUS AND SUBJECT TO MISINTERPRETATION. AFTER CAREFUL CONSIDERATION IT WAS DETERMINED TO READVERTISE THESE TWO ITEMS IN ORDER THAT BIDS ON A COMPETITIVE BASIS MAY BE OBTAINED AND THE INTEGRITY OF THE FORMAL ADVERTISING PROCEDURES MAINTAINED.'.

B-130530, MAR. 28, 1957

TO NARRAGANSETT INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1957, WHEREIN YOU PROTEST THE READVERTISEMENT BY THE COMMANDANT OF THE MARINE CORPS OF ITEMS NOS. 1 AND 2 OF THE INVITATION NO. 132, ISSUED DECEMBER 14, 1956, COVERING CHEST WEIGHTS AND STRIKING BAG DRUMS, RESPECTIVELY.

YOU CONTEND, IN SUBSTANCE, THAT THE GOVERNMENT'S REQUIREMENTS FOR THESE ITEMS WERE SET FORTH CLEARLY IN THE INVITATION, AND SINCE YOU WERE THE ONLY BIDDER WHO QUOTED CORRECTLY THEREON, YOU FEEL THAT IT WOULD BE UNFAIR OR DISCRIMINATORY FOR THE GOVERNMENT TO READVERTISE THE ITEMS ON A BASIS OTHER THAN THAT SPECIFIED IN THE ORIGINAL INVITATION.

THE REPORT REQUESTED BY OUR LETTER OF FEBRUARY 8, 1957, TO THE COMMANDANT OF THE UNITED STATES MARINE CORPS, HAS NOW BEEN RECEIVED, READING IN PERTINENT PART AS FOLLOWS:

"INVITATION TO BID NO. 132 WAS ISSUED BY THIS HEADQUARTERS ON 14 DECEMBER 1956. BIDS WERE SOLICITED FROM TWENTY-EIGHT FIRMS. OPENING OF THE BIDS WAS HELD ON 15 JANUARY 1957 WITH FOUR BIDS BEING RECEIVED ON ITEM 1 AND THREE ON ITEM 2.

"ITEM 1 OF THE INVITATION COVERED CHEST WEIGHTS (2 PER SET) AND ITEM 2 COVERED STRIKING BAG DRUMS (2 PER SET). IT MAY BE NOTED FROM READING THE DESCRIPTIONS OF THE ITEMS THAT AN AMBIGUITY EXISTED; FOR EXAMPLE, THE CHEST WEIGHTS REQUIRED FOUR HANDLES. THIS COULD HAVE BEEN INTERPRETED AS FOUR HANDLES TO A SET, OR FOUR HANDLES FOR EACH CHEST WEIGHT.

"THE CONTRACTING OFFICE COULD NOT COUNTENANCE A SITUATION WHEREBY COMPETING FIRMS COULD NOT SUBMIT BIDS ON A COMMON BASIS. THE DESCRIPTIONS FOR THESE TWO ITEMS WERE CONSIDERED TO BE AMBIGUOUS AND SUBJECT TO MISINTERPRETATION. AFTER CAREFUL CONSIDERATION IT WAS DETERMINED TO READVERTISE THESE TWO ITEMS IN ORDER THAT BIDS ON A COMPETITIVE BASIS MAY BE OBTAINED AND THE INTEGRITY OF THE FORMAL ADVERTISING PROCEDURES MAINTAINED.'

THE CIRCUMSTANCES THAT EACH OF THE BIDDERS, OTHER THAN YOURSELF, OF COURSE, WHO SUBMITTED PROPOSALS ON ITEMS 1 AND 2 OF INVITATION NO. 132, QUOTED ON AN INDIVIDUAL ITEM OR "EACH" BASIS, INSTEAD OF A SET BASIS, AS ADVERTISED, IS CLEARLY INDICATIVE OF THE FACT THAT THE SPECIFICATIONS DRAWN FOR THOSE ITEMS WERE EITHER MISLEADING, AMBIGUOUS, OR, AT LEAST, WERE SO FAULTILY WORDED AS TO CONTRIBUTE TO THE MISUNDERSTANDING WHICH UNQUESTIONABLY PREVAILED IN THE MINDS OF OTHER BIDDERS. ACCORDINGLY, IT WOULD APPEAR THAT THE COMMANDANT OF THE MARINE CORPS WAS JUSTIFIED IN READVERTISING THOSE ITEMS, AS TO WHICH AN AMBIGUITY EXISTED, UNDER ENTIRELY NEW SPECIFICATIONS SPECIFICALLY DESIGNED TO ELIMINATE ALL AMBIGUITY AS TO THE ACTUAL REQUIREMENT OF THE GOVERNMENT, AND TO DESCRIBE THE REQUIRED ITEMS WITH SUCH CLARITY AS TO RENDER VIRTUALLY IMPOSSIBLE THE MISUNDERSTANDING WHICH OBVIOUSLY HAD PREVAILED IN CONNECTION WITH THE ORIGINAL INVITATION.

THE COURTS HAVE OFTEN RULED THAT THE STATUTES OF THE UNITED STATES, OR OTHER GOVERNING BODIES, REQUIRING ADVERTISING IN CONNECTION WITH THEIR PROCUREMENTS, WERE ENACTED SOLELY FOR THEIR OWN BENEFIT OR CONVENIENCE, AND, THEREFORE, THEY DO NOT OPERATE TO CONFER ANY ENFORCEABLE RIGHTS UPON PRIVATE INDIVIDUALS. SEE PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, 126; FRIEND V. LEE, 221 F.2D 96, 100; O BRIEN V. CARNEY, 6 F.SUPP. 761.

WHILE WE REALIZE THE SERIOUSNESS OF THE POTENTIAL INJURY TO BIDDERS RESULTING FROM A READVERTISING AFTER BIDS HAVE BEEN OPENED AND PRICES BECOME KNOWN, THE INTERESTS OF THE GOVERNMENT ARE PARAMOUNT, AND THE AUTHORITY TO TAKE SUCH ACTION IS IN THE DISCRETION OF THE ADMINISTRATIVE OFFICE. IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO APPROVE THE ADMINISTRATIVE ACTION IN THIS MATTER.