B-140336, AUGUST 13, 1959, 39 COMP. GEN. 94

B-140336: Aug 13, 1959

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WHICH WAS AUTHORIZED UNDER 10 U.S.C. 2304 (A) (2) ON THE BASIS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISED PROCUREMENTS. IS A PERIOD OF TIME COMPARABLE TO THAT PERMITTED UNDER ADVERTISED PROCEDURES AND INDICATES THAT THE PUBLIC EXIGENCY EXCEPTION WAS IMPROPERLY NVOKED. NO VALID OBJECTION TO THE CANCELLATION OF THE NEGOTIATED SOLICITATION AND THE INVOCATION OF FORMAL ADVERTISED PROCUREMENT PROCEDURES WILL BE MADE. THE DEADLINE FOR SUBMISSION OF BIDS UNDER THE SECOND INVITATION WAS EXTREMELY SHORT IN RELATION TO COMPLEXITY OF THE PROCUREMENT. THE DENIAL OF A BIDDER'S REQUEST FOR AN EXTENSION OF TIME FOR A RECOMPUTATION OF A BID AFTER THE CONTRACTING AGENCY ISSUED AN AMENDMENT TO THE SPECIFICATIONS SHORTLY BEFORE BID OPENING DOES NOT APPEAR TO BE A BASIS FOR INVALIDATION OF THE AWARD IN VIEW OF EVIDENCE WHICH INDICATES THAT NONE OF THE OTHER RESPONSIVE BIDDERS REQUESTED AN EXTENSION AND THAT THE AMENDMENT SPECIFICATION DID NOT REQUIRE A BID RECOMPUTATION BUT WAS MERELY AN AFFIRMATION OF THE ORIGINAL SPECIFICATIONS.

B-140336, AUGUST 13, 1959, 39 COMP. GEN. 94

CONTRACTS - NEGOTIATION - PUBLIC EXIGENCY - CANCELLATION - TIME FOR SUBMISSION A THIRTY-DAY TIME SCHEDULE FOR THE SUBMISSION OF OFFERS UNDER A NEGOTIATED SOLICITATION, WHICH WAS AUTHORIZED UNDER 10 U.S.C. 2304 (A) (2) ON THE BASIS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISED PROCUREMENTS, IS A PERIOD OF TIME COMPARABLE TO THAT PERMITTED UNDER ADVERTISED PROCEDURES AND INDICATES THAT THE PUBLIC EXIGENCY EXCEPTION WAS IMPROPERLY NVOKED; THEREFORE, NO VALID OBJECTION TO THE CANCELLATION OF THE NEGOTIATED SOLICITATION AND THE INVOCATION OF FORMAL ADVERTISED PROCUREMENT PROCEDURES WILL BE MADE. ALTHOUGH THE TIME BETWEEN THE ISSUANCE OF AN INVITATION FOR BIDS FOLLOWING A DETERMINATION TO CANCEL A NEGOTIATED SOLICITATION FOR THE SAME PROCUREMENT, DUE TO AN IMPROPER INVOCATION OF THE PUBLIC EXIGENCY AUTHORITY IN 10 U.S.C. 2304 (A) (2), AND THE DEADLINE FOR SUBMISSION OF BIDS UNDER THE SECOND INVITATION WAS EXTREMELY SHORT IN RELATION TO COMPLEXITY OF THE PROCUREMENT, THE TIME ACTUALLY AVAILABLE FOR BIDDING MAY BE REGARDED AS ADEQUATE. THE DENIAL OF A BIDDER'S REQUEST FOR AN EXTENSION OF TIME FOR A RECOMPUTATION OF A BID AFTER THE CONTRACTING AGENCY ISSUED AN AMENDMENT TO THE SPECIFICATIONS SHORTLY BEFORE BID OPENING DOES NOT APPEAR TO BE A BASIS FOR INVALIDATION OF THE AWARD IN VIEW OF EVIDENCE WHICH INDICATES THAT NONE OF THE OTHER RESPONSIVE BIDDERS REQUESTED AN EXTENSION AND THAT THE AMENDMENT SPECIFICATION DID NOT REQUIRE A BID RECOMPUTATION BUT WAS MERELY AN AFFIRMATION OF THE ORIGINAL SPECIFICATIONS.

TO IDECO, INC., AUGUST 13, 1959:

BY TELEGRAMS OF JULY 28 AND 29 AND LETTERS OF JULY 28, 29, AND AUGUST 5, 1959, THE LATTER WITH ENCLOSURES, YOU HAVE PROTESTED THE PROCEDURES INCIDENT TO THE AWARD OF A CONTRACT BY THE CORPS OF ENGINEERS FOR CONSTRUCTION OF A SERVICE TOWER FOR COMPLEX 34 AT PATRICK AIR FORCE BASE, FLORIDA.

A " SOLICITATION FOR QUOTATION," REFERENCE SERIAL NO. ENG-08-123 /NEG 59- 19) WAS ISSUED JUNE 9, 1959, BY THE DISTRICT ENGINEER, JACKSONVILLE, FLORIDA, FOR SEALED QUOTATIONS COVERING THE PROJECT TO BE SUBMITTED NOT LATER THAN 11:00 A.M. EST, JULY 9, 1959. THE SOLICITATION PROVIDED IN PART:

1. LATE QUOTATIONS: THE GOVERNMENT RESERVES THE RIGHT TO CONSIDER QUOTATIONS OR MODIFICATIONS THEREOF RECEIVED AFTER THE DATE INDICATED FOR SUCH PURPOSE, BUT BEFORE THE AWARD IS MADE, SHOULD SUCH ACTION BE IN THE INTEREST OF THE GOVERNMENT.

THIS WAS CLEARLY INTENDED TO BE A NEGOTIATED AS OPPOSED TO A FORMALLY ADVERTISED PROCUREMENT AS IS INDICATED BY THE FOREGOING QUOTATION WHICH IS INCONSISTENT WITH FORMAL ADVERTISING PROCEDURES, AND BY THE USE OF THE TERMS "INFORMAL QUOTATIONS," "NEGOTIATION," AND "NEGOTIATED QUOTATION" ON THE FACE OF THE " QUOTATION FORM.' WE UNDERSTAND FURTHER THAT ALL OF THE INTERESTED PARTIES RECOGNIZED THAT THIS WAS INTENDED TO BE A NEGOTIATED PROCUREMENT.

OFFICERS WERE PUBLICLY OPENED AND PRICES ANNOUNCED ON JULY 9, 1959. THE TWO LOW OFFERS WERE IDECO'S AT $4,335,000 AND KAISER STEEL CORPORATION'S AT $4,339,316. IN ACCORDANCE WITH THE NORMAL PROCEDURE FOLLOWED BY THE CORPS OF ENGINEERS AT THAT TIME, NEGOTIATIONS SHOULD THEN HAVE BEEN UNDERTAKEN WITH THE LOW OFFEROR AND A CONTRACT AWARDED TO SUCH OFFEROR PROVIDED THAT MUTUALLY SATISFACTORY TERMS COULD BE ARRANGED. HOWEVER, THE SECOND LOW OFFEROR ON JULY 21, 1959, OFFERED A REDUCTION IN ITS PRICE OF $38,000. BY LETTER DATED JULY 25 TO THE DISTRICT ENGINEER YOUR FIRM OFFERED TO REDUCE ITS OFFER BY THE SAME AMOUNT THE OTHER OFFER HAD BEEN REDUCED.

HOWEVER, BY TELEGRAM OF JULY 25 THE DISTRICT ENGINEER HAD NOTIFIED ALL OFFERORS THAT THE ORIGINAL SOLICITATION WAS WITHDRAWN "DUE TO CHANGES IN SCOPE OF THE WORK," AND THAT NEW QUOTATIONS WOULD BE RECEIVED UNTIL 10:00 A.M., JULY 30, 1959, UNDER NUMBER ENG-08-123-NEG 60-5. THE PROVISIONS OF THE EARLIER SOLICITATION WERE MADE TO APPLY, WITH CERTAIN EXCEPTIONS ENUMERATED IN THE TELEGRAM, INCLUDING INCREASES IN CABLE LENGTHS AND DRUM CAPACITIES AND THE ELIMINATION OF A SERVICE PLATFORM. IT WAS ALSO STATED THAT NO PROPOSALS WOULD BE RECEIVED AFTER THE TIME FIXED AND THAT IT WAS PROPOSED TO EXECUTE A CONTRACT PRIOR TO AUGUST 1.

YOUR FIRM PROTESTED THE WITHDRAWAL OF THE OLD SOLICITATION AND ALLEGED THAT NEGOTIATIONS SHOULD BE INSTITUTED WITH THE LOW OFFEROR THEREUNDER, CONTENDING THAT WITHDRAWAL OF THE ORIGINAL SOLICITATION AND THE SUBSTITUTION OF THE NEW SOLICITATION WAS CONTRARY TO THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION.

AFTER FURTHER CONSIDERATION IT WAS DETERMINED BY THE DEPARTMENT OF THE ARMY THAT NEGOTIATION OF THE PROCUREMENT WAS NOT JUSTIFIED, AND THAT THE NEW SOLICITATION SHOULD BE TREATED AS AN INVITATION FOR BIDS PURSUANT TO WHICH AWARD WOULD BE MADE TO THE LOW BIDDER AS UNDER COMPETITIVE BID PROCEDURES. WE UNDERSTAND THAT INTERESTED PARTIES WERE ADVISED OF THE CHANGE BY TELEGRAM OF JULY 29 AND THAT BIDS WERE REQUIRED TO BE SUBMITTED BY JULY 31.

SIX BIDS WERE RECEIVED, ALL RESPONSIVE. THE THREE LOW BIDS WERE AS FOLLOWS: KAISER STEEL CORPORATION------------------------------- $3,898,999 YUBA CONSOLIDATED INDUSTRIES, INC.--------------------- 3,947,899 IDECO, INC.---------------------------------------------- 3,994,500 WE HAVE BEEN ADVISED THAT AWARD WAS MADE TO THE LOW BIDDER ON JULY 31.

IT IS OUR UNDERSTANDING THAT THE PROCUREMENT ORIGINALLY WAS PROPOSED TO BE NEGOTIATED PURSUANT TO THE EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT PROVIDED IN 10 U.S.C. 2304 (A) (2), WHICH AUTHORIZES NEGOTIATION WHEN "THE PUBLIC EXIGENCY WILL NOT PERMIT DELAY INCIDENT TO ADVERTISING.' THE PLAIN LANGUAGE OF THE EXCEPTION INDICATES THAT IT IS TO BE INVOKED WHERE THE GOVERNMENT'S INTERESTS WOULD BE PREJUDICED BY THE CONSUMPTION OF TIME NECESSARILY ATTENDING THE PREPARATION AND DISTRIBUTION OF INVITATIONS FOR BIDS AND APPLICABLE SPECIFICATIONS, THE COMPLETION AND RETURN OF BID FORMS, AND THE EVALUATION OF BIDS. SEE IN THIS CONNECTION 38 COMP. GEN. 44, WHEREIN AN ADMINISTRATIVE DETERMINATION THAT THE EXCEPTION WAS PROPERLY FOR APPLICATION WAS MADE ON ONE DAY AND AWARD WAS MADE ON THE NEXT DAY. IN THIS INSTANCE, A CONSIDERABLE PERIOD OF TIME WAS OBVIOUSLY TAKEN TO PREPARE AND REPRODUCE THE DETAILED SPECIFICATIONS AND OTHER PROVISIONS OF THE INITIAL ,SOLICITATION FOR QUOTATIONS" WHICH ON ITS FACE APPEARS AS COMPLETE AND DETAILED AS A NORMAL INVITATION FOR BIDS. FURTHER, THE TIME GIVEN FOR SUBMISSION OF OFFERS UNDER THAT SOLICITATION (30 DAYS) COMPARES FAVORABLY WITH THE TIME PERMITTED UNDER MANY INVITATIONS FOR BIDS DEALING WITH PROCUREMENTS OF A COMPARABLE COMPLEXITY. SINCE THE TIME SCHEDULE WITH RESPECT TO THE ORIGINAL SOLICITATION WAS AT LEAST AS GENEROUS AS WOULD BE REQUIRED UNDER FORMAL ADVERTISING, WE MUST CONCLUDE THAT THE CITED EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT WAS IMPROPERLY INVOKED IN THIS CASE AND THAT THE PROCUREMENT BY ANY MEANS OTHER THAN FORMAL ADVERTISING WOULD NOT HAVE BEEN AUTHORIZED. SEE IN THIS RESPECT 10 U.S.C. 2304 (A) WHICH PROVIDES IN PERTINENT PART:

PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING. * * *

SINCE THE AUTHORITY USED FOR NEGOTIATING DID NOT APPLY, WE CAN INTERPOSE NO VALID OBJECTION TO THE DECISION TO CANCEL THE SOLICITATIONS AND ADVERTISE. IN VIEW OF THIS CONCLUSION IT BECOMES UNNECESSARY TO CONSIDER WHETHER, HAD NEGOTIATION BEEN AUTHORIZED, IT WAS PROPER TO NEGOTIATE WITH OTHER THAN THE LOW OFFEROR UNDER THE ORIGINAL SOLICITATION OR WHETHER THAT SOLICITATION COULD PROPERLY HAVE BEEN WITHDRAWN AND OFFERS RESOLICITED UNDER THE REPLACEMENT SOLICITATION.

IN YOUR LETTER OF AUGUST 5 YOU STATE THAT EVEN ASSUMING THAT THE WITHDRAWAL OF THE SOLICITATIONS IN FAVOR OF AN INVITATION FOR BIDS WAS PROPER, THE PROCEDURES RELATING TO THE INVITATION WERE CONTRARY TO REGULATION. SPECIFICALLY, YOU STATE THAT A TELEGRAM AMENDING THE SPECIFICATIONS WAS RECEIVED BY IDECO AT 3:00 P.M., JULY 30, ONLY FOUR BUSINESS HOURS BEFORE BID OPENING, WHICH AMENDMENT "CONTAINED WHAT PURPORTED TO BE A CLARIFICATION IN SPECIFICATION BUT WHICH ACTUALLY CONFUSED THE SPECIFICATION.'

PARAGRAPH SC-10 OF THE ORIGINAL SPECIFICATION PROVIDED IN PART:

* * * THE CONTRACTOR SHALL GUARANTEE THE PERFORMANCE OF THE STRUCTURE UNDER ALL CONDITIONS OF USE AND LOADING SET FORTH IN THESE PLANS AND SPECIFICATIONS. * * *

THE TELEGRAM OF JULY 25, REFERRED TO PREVIOUSLY, PROVIDED FOR DESIGNATED CHANGES AND ADVISED THAT SUCH CHANGES WERE MADE TO PROVIDE FOR A POSSIBLE FUTURE INCREASE OF 40 FEET IN THE HEIGHT OF THE STRUCTURE UP TO A HEIGHT OF 285 FEET. THE TELEGRAM FURTHER STATED AT PARAGRAPH 13:

EXCEPT FOR CHANGES OUTLINED HEREIN TO PROVIDE FUTURE HOOK HEIGHT OF 285 FEET, THE BASIC STRUCTURE SHALL REMAIN AS PRESENTLY DESIGNED.

THE TELEGRAM OF JULY 30 STATED IN PART:

2. THIS IS TO CLARIFY NUMBERED PARAGRAPH 13 OF MESSAGE SENT 25 JULY 1959 REINSTATING THE ABOVE WORK. THE CONTRACTOR'S RESPONSIBILITY FOR DESIGN OF THE BASIC STRUCTURE AS STATED IN PARAGRAPH SC-10 IS LIMITED TO THE 245 FOOT HOOK HEIGHT.

IT IS THE FOREGOING WHICH YOU CONTEND DOES NOT CLARIFY BUT CONFUSES THE SPECIFICATION IN THAT, YOU ALLEGE, IT COULD NOT BE DETERMINED TO WHAT EXTENT THE CONTRACTOR'S GUARANTEE UNDER PARAGRAPH SC-10 WOULD BE AFFECTED IN THE EVENT THE ADDITIONAL 40 FEET WERE ADDED. YOU INDICATE THAT THE POSSIBLE EFFECT ON YOUR BID OF THE CLARIFICATION COULD NOT BE SATISFACTORILY DETERMINED WITHIN THE TIME AVAILABLE. A FIVE-DAY EXTENSION REQUESTED BY YOU WAS DENIED. YOU CONTEND THAT THE DESCRIBED PROCEDURE WAS IN VIOLATION OF ASPR SECTIONS 2-202, PROVIDING THAT BIDS SHALL BE SOLICITED SUFFICIENTLY IN ADVANCE OF OPENING TO ALLOW BIDDERS AN ADEQUATE OPPORTUNITY TO PREPARE AND SUBMIT THEIR BIDS, AND 2-201 (D), PROVIDING THAT ALL ESSENTIAL REQUIREMENTS SHALL BE ADEQUATELY DESCRIBED IN THE INVITATION EITHER DIRECTLY OR BY REFERENCE TO ALL APPLICABLE DRAWINGS, PLANS AND SPECIFICATIONS.

IN THIS INSTANCE, THE TIME BETWEEN ISSUANCE OF THE INVITATION FOR BIDS AND THE DEADLINE FOR SUBMISSION OF BIDS WAS EXTREMELY SHORT IN RELATION TO THE SIZE AND COMPLEXITY OF THE PROCUREMENT. IT APPEARS CLEAR, HOWEVER, THAT EXCEPT FOR THE CHANGES CONTAINED IN THE TELEGRAM OF JULY 25, WHICH YOU CONCEDE IN THE ENCLOSURE TO YOUR LETTER OF JULY 29 ARE NOT SUBSTANTIAL, INTERESTED PARTIES HAD FROM THE TIME OF RECEIPT OF THE ORIGINAL SOLICITATION UNTIL BID OPENING TO PREPARE THEIR BIDS.

WHILE THE DEPARTURES IN THE FIRST STAGES OF THIS PROCUREMENT FROM THE PROCEDURES PRESCRIBED BY THE ASPR CREATED AN UNFORTUNATE AND MANIFESTLY UNDESIRABLE SITUATION, WE DO NOT BELIEVE THAT THE REMEDIAL ACTIONS TAKEN WERE SO PREJUDICIAL TO THE INTERESTS OF BIDDERS AS TO JUSTIFY EXCEPTION BY OUR OFFICE TO THE AWARD FINALLY MADE. IN THE PECULIAR CIRCUMSTANCES EXISTING, THE TIME ACTUALLY AVAILABLE FOR BIDDING MAY BE REGARDED AS ADEQUATE.

WE THINK IT CLEAR FROM THE QUOTED LANGUAGE OF PARAGRAPH SC-10 OF THE ORIGINAL SPECIFICATION AND PARAGRAPH 13 OF THE TELEGRAM OF JULY 25 THAT, EXCEPT FOR THE CHANGES ENUMERATED IN THE TELEGRAM, A TOWER WHICH WOULD CONFORM TO THE REQUIREMENTS OF THE ORIGINAL SPECIFICATION WOULD ALSO MEET THE SPECIFICATION AS AMENDED BY THE TELEGRAM. WE THINK IT IS ALSO CLEAR THAT PARAGRAPH 2 OF THE TELEGRAM OF JULY 30 WAS INTENDED MERELY TO REAFFIRM SUCH INTENTION. THAT SUCH INTENTION IS CLEAR IS SUPPORTED BY THE FACT THAT NONE OF THE OTHER FIVE RESPONSIVE BIDDERS APPEARS TO HAVE REQUESTED EITHER AN EXTENSION OF TIME OR FURTHER CLARIFICATION. ACCORDINGLY, IT DOES NOT APPEAR THAT THE CLARIFICATION OF JULY 30 SHOULD HAVE REQUIRED ANY BID-RECOMPUTATION OR THAT THE REFUSAL OF THE CONTRACTING OFFICER TO EXTEND THE DATE FOR BID OPENING TO PERMIT SUCH RECOMPUTATION MAY BE REGARDED AS A BASIS FOR INVALIDATING THE AWARD MADE PURSUANT TO THE INVITATION FOR BIDS.