B-134999, APR. 23, 1958

B-134999, APR. 23, 1958

TO MR. PHILIP J. LESSER:

FURTHER REFERENCE IS MADE TO YOUR PROTEST OF JANUARY 29, 1958, FILED ON BEHALF OF YOUR CLIENT, GRUNLEY, WALSH AND BLANCHE, INC., AGAINST THE AWARD OF CONTRACT NO. GS-R3-B-6015, DATED JANUARY 23, 1958, TO THE CORNING CONSTRUCTION CORPORATION, BETHESDA, MARYLAND, A COMPETITOR UNDER AN INVITATION ISSUED DECEMBER 23, 1957, BY THE PUBLIC BUILDINGS ADMINISTRATION, COVERING THE WORK OF MODERNIZING THE CITY POST OFFICE AT WASHINGTON, D.C.

ELEVEN SEPARATE PROPOSALS WERE RECEIVED IN RESPONSE TO THE GOVERNMENT'S INVITATION, THE LOWEST OF WHICH, FOR $142,200, WAS SUBMITTED BY THE CORNING CONSTRUCTION CORPORATION. THE SECOND LOWEST BID WAS $150,500,SUBMITTED BY YOUR CLIENT, GRUNLEY, WALSH AND BLANCHE, INC. BY LETTER DATED JANUARY 14, 1958--- ONE DAY AFTER FORMAL OPENING OF THE BIDS ON JANUARY 13--- THE CORNING CONSTRUCTION CORPORATION REQUESTED THE WITHDRAWAL OF ITS LOW BID, EXPLAINING THAT, THROUGH ERROR OR INADVERTENCE, THE WORK OF CLEANING THE BRONZE FIXTURES LOCATED IN THE WORK AREA WAS NOT INCLUDED IN THE AMOUNT OF ITS PROPOSAL. HOWEVER, IN ANOTHER COMMUNICATION DATED JANUARY 21, 1958, THE LOW BIDDER ADVISED THE CONTRACTING OFFICER THAT BY REASON OF FAVORABLE NEGOTIATIONS WITH ITS SUBCONTRACTORS, IT WAS WILLING TO COMPLETE THE ENTIRE JOB FOR THE AMOUNT OF ITS ORIGINAL BID, AND THEREFORE REQUESTED THAT ITS PREVIOUS REQUEST FOR WITHDRAWAL BE IGNORED. UPON RECEIPT OF THIS ADVICE, THE CONTRACTING OFFICER ON JANUARY 23, 1958, AWARDED THE CONTRACT TO THE CORNING CONSTRUCTION CORPORATION AS THE LOWEST BIDDER UNDER THE GOVERNMENT'S INVITATION.

YOU HAVE PROTESTED THE AWARD AS MADE IN THIS INSTANCE, CONTENDING, IN SUBSTANCE, THAT TO ALLOW THE LOWEST BIDDER TO WITHDRAW ITS BID SHORTLY AFTER OPENING ON JANUARY 13, 1958, AND THEN TO REINSTATE ITS PROPOSAL SEVERAL DAYS LATER, BUT BEFORE AWARD, AFFORDED THAT BIDDER THE OPPORTUNITY TO "SECOND GUESS" AFTER THE BID OPENING DATE NOT ONLY AS TO THE AMOUNT OF ITS BID, BUT ALSO AS TO THE PROPRIETY OF SUBMITTING A NEW PROPOSAL AFTER ITS ORIGINAL BID HAD BEEN WITHDRAWN. YOU HAVE CITED THE DECISION IN UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, AS HOLDING THAT THE PURPOSE OF THE GOVERNMENT ADVERTISING STATUTES IS TO AFFORD ALL INTERESTED PARTIES A FAIR AND EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS, AND THUS TO SECURE FOR IT THE BENEFITS WHICH FLOW FROM FREE AND OPEN COMPETITION. ALSO, YOU CITE OUR DECISION 35 COMP. GEN. 33, TO SUPPORT THE FURTHER PROPOSITION THAT BIDDERS WOULD NOT BE COMPETING UPON A COMMON BASIS IF, AFTER OPENING OF THE BIDS, THE LOW BIDDER WERE PLACED IN THE FAVORABLE POSITION OF EITHER BEING ABLE TO WITHDRAW ITS BID, CLAIM AND OBTAIN A CORRECTION OF ITS BID PRICES, OR INSIST UPON THE CORRECTNESS OF ITS ORIGINAL BID PRICES.

WITHOUT DISPUTING THE CORRECTNESS OF THE STATED LEGAL PRINCIPLES, NOR THEIR APPLICABILITY TO CERTAIN FACTUAL PHASES OF THE INSTANT TRANSACTION, THERE IS NOT HERE INVOLVED ANY ATTEMPTED MANIPULATION BY THE LOW BIDDER, AFTER THE DATE OF OPENING, OF ITS ORIGINAL BID PRICE FORTHIS JOB. FACT, IT MADE A REQUEST FOR THE WITHDRAWAL OF ITS BID, BASED UPON AN ALLEGED MISTAKE OF OMISSION, AND BEFORE SUCH REQUEST WAS ACTED UPON BY THE CONTRACTING OFFICER, ATTEMPTED TO WITHDRAW ITS REQUEST AND THUS RESTORE ITS ORIGINAL BID. THEREUPON THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE LOWEST BIDDER UNDER THE INVITATION.

IRRESPECTIVE OF THE PROPRIETY OF HIS CONDUCT IN THE CIRCUMSTANCES, THE FACT REMAINS THAT THE ACTION OF THE CONTRACTING OFFICER WAS NEITHER ILLEGAL, NOR BEYOND THE SCOPE OF HIS AUTHORITY. NO BIDDER IS ENTITLED TO WITHDRAW HIS BID UPON A GOVERNMENT CONTRACT AS A MATTER OF RIGHT, BUT MAY BE PERMITTED TO DO SO ONLY UPON SATISFACTORILY ESTABLISHING A LEGAL GROUND THEREFOR. HENCE, THE AWARD AS MADE CONSTITUTED A VALID AND BINDING CONTRACT WHICH UNEQUIVOCALLY BOUND THE PARTIES TO THE TERMS AND CONDITIONS THEREOF. FURTHERMORE, IT APPEARS THAT THE CONTRACTOR HAS SINCE ENTERED INTO PERFORMANCE OF THE WORK SPECIFIED, AND UNDOUBTEDLY HAS COMPLETED A SUBSTANTIAL PORTION OF THE CONTRACT SERVICES, SO THAT CANCELLATION THEREOF AT THIS TIME COULD SERVE NO USEFUL PURPOSE.

IN THESE CIRCUMSTANCES, WE WOULD NOT NOW BE JUSTIFIED IN DISTURBING THE AWARD AS MADE IN THIS INSTANCE.