B-142514, JUN. 9, 1960
Highlights
INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 5 AND 7. YOU APPARENTLY BASE YOUR PROTEST ON THE FACT THAT AFTER OPENING OF BIDS YOU WERE NOT GIVEN AN OPPORTUNITY TO FURNISH THE DESCRIPTIVE MATERIAL AND THE STATEMENT REQUIRED. WHICH IS A BASIC AUTHORITY FOR AGENTS OF THE GOVERNMENT TO ENTER INTO CONTRACTS. PROVIDES THAT "AWARDS SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. UNDER THE LAW A BID IS REQUIRED TO BE COMPLETE AND RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS AT THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. THE GOVERNMENT PURCHASING OFFICERS ARE REQUIRED TO GIVE ALL INTERESTED BIDDERS AN EQUAL OPPORTUNITY TO BID AND THE GOVERNMENT IS DESIROUS OF OBTAINING THE BEST PRICE POSSIBLE.
B-142514, JUN. 9, 1960
TO THE MANHATTAN LIGHTING EQUIPMENT CO., INC.:
FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 5 AND 7, 1960, PROTESTING THE AWARD BY GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, SAN FRANCISCO, CALIFORNIA, PURSUANT TO INVITATION FOR BIDS NO. SFX-13154-60.
THE INVITATION SOLICITED BIDS FOR FURNISHING CERTAIN ITEMS OF EQUIPMENT SPECIFIED THEREIN. THE INVITATION CONTAINED A BRAND-NAMES CLAUSE WHICH REQUIRED THAT BIDS OFFERING OTHER THAN THE REFERENCED BRAND MUST BE ACCOMPANIED BY DESCRIPTIVE LITERATURE AND A STATEMENT IN DETAIL SHOWING DIFFERENCES, IF ANY, BETWEEN THE OFFERED ITEM AND THE REFERENCED ITEM. THE CLAUSE STATED THAT FAILURE TO FURNISH THIS INFORMATION WOULD REQUIRE REJECTION OF THE BID.
IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OFFERING TO FURNISH ITEMS OF OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION, BUT YOU DID NOT SUBMIT WITH YOUR BID THE DESCRIPTIVE LITERATURE AND THE STATEMENT REQUIRED BY THE BRAND-NAMES CLAUSE. FOR THIS REASON THE CONTRACTING OFFICER CONSIDERED YOUR BID NONRESPONSIVE. YOU APPARENTLY BASE YOUR PROTEST ON THE FACT THAT AFTER OPENING OF BIDS YOU WERE NOT GIVEN AN OPPORTUNITY TO FURNISH THE DESCRIPTIVE MATERIAL AND THE STATEMENT REQUIRED.
SECTION 2305, TITLE 10, U.S. CODE, WHICH IS A BASIC AUTHORITY FOR AGENTS OF THE GOVERNMENT TO ENTER INTO CONTRACTS, PROVIDES THAT "AWARDS SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'
UNDER THE LAW A BID IS REQUIRED TO BE COMPLETE AND RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS AT THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. AFTER THE OPENING, BIDS MAY NOT BE CHANGED OR MODIFIED. THE GOVERNMENT PURCHASING OFFICERS ARE REQUIRED TO GIVE ALL INTERESTED BIDDERS AN EQUAL OPPORTUNITY TO BID AND THE GOVERNMENT IS DESIROUS OF OBTAINING THE BEST PRICE POSSIBLE. IT IS FOR THESE REASONS THAT, AS HERE, THE INVITATION FOR BIDS IS DRAWN IN SUCH A MANNER AS TO REQUIRE BIDDERS TO FURNISH CERTAIN STIPULATED INFORMATION SO THAT ALL BIDS MAY BE CONSIDERED FOR AWARD ON AN EQUAL BASIS AND THAT THERE MAY BE NO QUESTION OF FAVORITISM OR FRAUD. THE REASON WHY THE CONTRACTING OFFICER DID NOT TAKE ADVANTAGE OF YOUR LOWER PRICE WAS DUE ENTIRELY TO YOUR OWN ACTIONS IN FAILING TO FURNISH WITH YOUR BID THE DESCRIPTIVE LITERATURE AND STATEMENT REQUIRED BY THE INVITATION. ACCORDINGLY, YOUR BID WAS PROPERLY REJECTED.
IN THE CIRCUMSTANCES, OUR OFFICE FINDS NO LEGAL BASIS FOR QUESTIONING THE AWARD AS MADE.