B-140452, NOV. 9, 1959

B-140452, NOV. 9, 1959

TO DON J. CUMMINGS COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 11, 1959, AND LETTERS DATED AUGUST 19 AND OCTOBER 23, 1959, PROTESTING THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN REJECTING ALL BIDS RECEIVED IN RESPONSE TO INVITATION NO. 138, DATED JULY 6, 1959, WHICH INVITED BIDS FOR THE FURNISHING OF STEEL PARTITIONS FOR THE HOLLOMAN AIR FORCE BASE, NEW MEXICO.

YOU STATED IN YOUR LETTER OF AUGUST 19, 1959, THAT THE GENERAL SERVICES ADMINISTRATION OF DENVER, COLORADO, ADVISED YOU THAT YOUR BID WAS THE LOWEST RECEIVED AND REQUESTED THAT YOU SUBMIT ENGINEERING DATA AND A SAMPLE FOR REVIEW BY THAT OFFICE. FURTHER, YOU STATED THAT YOU MADE A PERSONAL PRESENTATION OF THE SAMPLE AND BROCHURES TO THE ADMINISTRATIVE OFFICE. ALSO, YOU STATED THAT YOU WERE ADVISED ON AUGUST 10, 1959, THAT YOUR BID HAS BEEN REJECTED AND THAT AWARD WOULD BE MADE TO ANOTHER FIRM.

THE RECORD BEFORE US DISCLOSES THAT BEFORE COMPLETION OF AWARD OF A CONTRACT UNDER INVITATION NO. 138, THE HOLLOMAN AIR FORCE BASE REQUESTED THE GENERAL SERVICES ADMINISTRATION TO CANCEL ITS REQUEST FOR STEEL PARTITIONS AND IN LIEU THEREOF, REQUESTED PROCUREMENT ON NON METAL ACOUSTICIZED PARTITIONS. THESE PARTITIONS WERE PROCURED UNDER AN EXISTING CONTRACT NO. GS-08S-14341, WHICH WAS ENTERED INTO BETWEEN THE GENERAL SERVICES ADMINISTRATION AND MUTUAL FURNITURE AND FIXTURE COMPANY, UNDER DATE OF MAY 1, 1959, FOR A PERIOD OF ONE YEAR BEGINNING FROM DATE OF AWARD. THUS, CONTRARY TO YOUR CONTENTION THAT "THE BIDS WERE THROWN OUT AS A LAST MINUTE EFFORT TO KEEP FROM GIVING OUR FIRM THIS ORDER," IT APPEARS THAT THE NEED FOR STEEL PARTITIONS NO LONGER EXISTED AT HOLLOMAN AIR FORCE BASE, AND IT WAS FOR THAT REASON ONLY THAT INVITATION NO. 138 WAS CANCELLED, AND THROUGH NO EFFORT OF THE GENERAL SERVICES ADMINISTRATION. THE CANCELLATION OF THE BIDS WAS IN ACCORDANCE WITH THE RIGHT EXPRESSLY RESERVED BY THE GOVERNMENT IN THE PROVISIONS OF SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, 395, WHICH CONTAINS THE PROVISO "THAT ALL BIDS MAY BE REJECTED WHEN THE AGENCY HEAD DETERMINES THAT IT IS IN THE PUBLIC INTEREST SO TO DO.'

WE ARE KEENLY AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF, AND ARE REQUIRED TO WORK IN THE BEST INTEREST OF, THE GOVERNMENT THEIR ACTION IN REJECTING BIDS MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WILL BE BEST SERVED THEREBY.

IT IS UNFORTUNATE THAT IN THIS INSTANCE THE ORIGINAL INVITATION FAILED TO SET OUT THE PRECISE NATURE OF THE UNITS WHICH WERE DESIRED. HOWEVER, THE ONLY ALTERNATIVE TO THE REJECTION OF ALL BIDS--- THAT IS, ACCEPTANCE OF YOUR BID--- WOULD HAVE RESULTED IN THE PURCHASE OF STEEL PARTITIONS, WHICH LATER IT WAS DETERMINED WERE NOT DESIRED AND NOT SUITED TO THE NEEDS OF HOLLOMAN AIR FORCE BASE. IN THESE CIRCUMSTANCES WE BELIEVE THAT THE INTEREST OF THE GOVERNMENT IS PROPERLY TO BE REGARDED AS SUPERIOR TO THE INTEREST OF ANY BIDDER IN NOT HAVING ITS PRICES DISCLOSED.

FOR THESE REASONS WE WOULD NOT FEEL JUSTIFIED IN OBJECTING TO THE ACTION OF THE GENERAL ..END :