B-141127, DEC. 4, 1959

B-141127: Dec 4, 1959

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. BIDS WERE REQUESTED ON THREE ITEMS: THE FIRST WAS THE FURNISHING AND INSTALLATION OF WRAPPED STEEL PIPE. WHEN BIDS WERE OPENED ON OCTOBER 15. IT WAS FOUND THAT BIDS FOR THE WRAPPED STEEL PIPE RANGED FROM $31. BIDS FOR THE CAST IRON PIPE WERE THE LOW BID SUBMITTED BY THE M. WAS $27. IT WAS DETERMINED BY THE CONTRACTING AGENCY THAT THE SMALL DIFFERENCE IN PRICE. AWARD WAS THEREFORE MADE ON OCTOBER 16. IT IS YOUR CONTENTION. THAT THE AWARD WAS IRREGULAR AND CONTRARY TO GOVERNMENT BIDDING PRACTICES. YOU STATE THAT IF COMPARABLE COMPETITIVE BIDS HAD BEEN DESIRED THE BIDDERS SHOULD HAVE BEEN INSTRUCTED THAT THE FAILURE TO BID ON ALL ITEMS WOULD RESULT IN BID DISQUALIFICATION.

B-141127, DEC. 4, 1959

TO ROGER E. BROOKS, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1959, WITH ENCLOSURE, PROTESTING ON BEHALF OF THE M. CAIN COMPANY, INC., THE REJECTION OF ITS BID PURSUANT TO AN INVITATION FOR BIDS ISSUED BY THE NATIONAL CAPITAL HOUSING AUTHORITY FOR THE INSTALLATION OF UNDERGROUND GAS PIPING AT THE BARRY FARM DWELLINGS (PROJECT DC-1-9).

BIDS WERE REQUESTED ON THREE ITEMS: THE FIRST WAS THE FURNISHING AND INSTALLATION OF WRAPPED STEEL PIPE; THE SECOND FOR THE SAME WORK USING CAST IRON PIPE; AND THE THIRD FOR THE INSTALLATION OF PIPE AND FITTINGS TO BE SUPPLIED BY THE CONTRACTING AGENCY. DIRECTLY BENEATH THE THREE ALTERNATIVES THE INVITATION STATED,"BIDDERS MAY BID ON ANY OR ALL OF THE ABOVE BIDS.'

WHEN BIDS WERE OPENED ON OCTOBER 15, 1959, IT WAS FOUND THAT BIDS FOR THE WRAPPED STEEL PIPE RANGED FROM $31,137 TO $43,453; BIDS FOR THE CAST IRON PIPE WERE THE LOW BID SUBMITTED BY THE M. CAIN COMPANY, INC., AT $29,679, AND ANOTHER AT $34,537. THE LOW BID FOR THE THIRD ITEM, LABOR ONLY, WAS $27,734. IT WAS DETERMINED BY THE CONTRACTING AGENCY THAT THE SMALL DIFFERENCE IN PRICE, $1,453, BETWEEN THE LOW ACCEPTABLE BID FOR THE WRAPPED STEEL PIPE AND THE LOW ACCEPTABLE BID FOR THE CAST IRON PIPE WARRANTED THE USE OF THE FORMER, DEEMED TO BE MORE SUITABLE FOR THE PROPOSED PURPOSE. AWARD WAS THEREFORE MADE ON OCTOBER 16, 1959, TO THE LOW BIDDER ON THE FIRST ITEM.

IT IS YOUR CONTENTION, AS STATED IN THE ENCLOSURE TO YOUR LETTER OF OCTOBER 22, THAT THE AWARD WAS IRREGULAR AND CONTRARY TO GOVERNMENT BIDDING PRACTICES. YOU APPEAR TO ARRIVE AT THIS CONCLUSION ON THE BASIS THAT THE INVITATION GAVE THE BIDDER THE ALTERNATIVE OF BIDDING ON EITHER THE WRAPPED STEEL OR THE CAST IRON PIPE AND REQUIRED THE CONTRACTING AGENCY TO ACCEPT THE LOW BID FROM A RESPONSIBLE BIDDER WITHOUT RESPECT TO THE TYPE OF PIPE OFFERED. YOU STATE THAT IF COMPARABLE COMPETITIVE BIDS HAD BEEN DESIRED THE BIDDERS SHOULD HAVE BEEN INSTRUCTED THAT THE FAILURE TO BID ON ALL ITEMS WOULD RESULT IN BID DISQUALIFICATION.

YOUR CONTENTION THAT THE INVITATION COULD REASONABLY BE REGARDED AS ESTABLISHING WRAPPED STEEL OR CAST IRON AS EQUALLY ACCEPTABLE IS INCONSISTENT WITH THE PROVISION OF THE INVITATION QUOTED ABOVE, PERMITTING THE BIDDERS TO BID ON ANY OR ALL OF THE BIDS. HAD THE AGENCY INTENDED THE INVITATION TO MEAN WHAT YOU CONTEND, THERE WOULD HAVE BEEN NO PURPOSE IN SEPARATING THE FIRST TWO BID ITEMS. INSTEAD, THEY COULD HAVE BEEN LUMPED INTO ONE ITEM REQUIRING THE USE EITHER OF WRAPPED STEEL OR CAST IRON PIPE. IT APPEARS TO US THAT THE REASONABLE INTERPRETATION OF THE INVITATION IS THAT THE NATIONAL CAPITAL HOUSING AUTHORITY RESERVED TO ITSELF THE RIGHT TO SELECT FOR AWARD AFTER BID OPENING ANY ONE OF THE THREE ALTERNATIVES.

THE POSITION FOR WHICH YOU CONTEND HAS PREVIOUSLY BEEN RAISED BEFORE OUR OFFICE IN ANALOGOUS SITUATIONS. IT HAS CONSISTENTLY BEEN HELD THAT THIS TYPE OF INVITATION AND AN AWARD PURSUANT THERETO, ON THE BASIS OF THE ALTERNATIVE DETERMINED BY THE CONTRACTING AGENCY AFTER OPENING TO BE IN THE GOVERNMENT'S BEST INTEREST, IS PROPER AND EFFECTS A VALID AND BINDING CONTRACT. SEE 34 COMP. GEN. 633; B-126389, FEBRUARY 3, 1956; AND B- 124673, SEPTEMBER 15, 1955.

IN ACCORDANCE WITH THE FOREGOING WE CONCLUDE THAT THERE HAS NOT BEEN PRESENTED ANY SUFFICIENT ..END :