B-142893, SEP. 12, 1960

B-142893, SEP. 12, 1960

TO TRAVELITE TRAILER COMPANY OF TEXAS:

YOU HAVE, BY LETTER OF AUGUST 13, 1960, REQUESTED RECONSIDERATION OF OUR DECISION, B-142893 OF JULY 25, 1960, WHEREIN WE FOUND NO LEGAL BASIS FOR OBJECTION TO THE CANCELLATION BY THE DEPARTMENT OF THE AIR FORCE OF INVITATION NO. 25-600-60-80 AND THE SUBSEQUENT PROCUREMENT OF THE SAME ITEMS UNDER A LATER INVITATION.

BRIEFLY, THE EARLIER INVITATION WAS ISSUED MARCH 15, 1960, FROM OFFUTT AIR FORCE BASE FOR THE PROCUREMENT OF 24 RADAR BOMB SCORING TRAILERS. DELIVERY OF THE FIRST SIX TRAILERS WAS REQUIRED UNDER THE TERMS OF THE INVITATION ON OR BEFORE MAY 15 WITH SUBSEQUENT DELIVERIES OF SIX TRAILERS EACH ON MAY 30, JUNE 15, AND JUNE 30, 1960, RESPECTIVELY. IN YOUR BID, WHICH WAS LOW, YOU OFFERED TO MEET THE DELIVERY SCHEDULE IF AWARD WAS MADE ON OR BEFORE APRIL 15. YOU ALSO SUBMITTED WITH, AND MADE PART OF, YOUR BID A LETTER DATED MARCH 30, 1960, WHICH STATED IN PART: "OUR BID * * * COVERS THE 24 TRAILERS AS PER PLANS AND SPECIFICATIONS EXCEPT AS FOLLOWS: .' FIVE "EXCEPTIONS" WERE THEN LISTED. THE "EXCEPTIONS" IN YOUR BID RAISED A QUESTION AS TO ITS RESPONSIVENESS AND RESULTED IN SOME DELAY IN ITS CONSIDERATION. FINALLY, ON APRIL 15 THE COMMITTEE AT THE AIR MATERIEL COMMAND REVIEWING THE PROCUREMENT ADVISED THE BASE PROCUREMENT OFFICE THAT YOUR BID WAS CONSIDERED NONRESPONSIVE. THAT INFORMATION WAS PASSED ON TO YOU ON THE SAME DAY.

YOU WROTE TWO LETTERS TO THE BASE PROCUREMENT OFFICE DATED APRIL 19, 1960. THE FIRST RESPONDED TO THE QUESTIONS CONCERNING THE EXCEPTIONS NOTED TO THE SPECIFICATIONS IN WHICH YOU EXPLAINED THAT SUCH EXCEPTIONS WERE IN FACT EXPLANATIONS INTENDED TO CLARIFY THE PROPOSAL, TO PROVIDE A CHOICE OF ALTERNATES AND FOR SIMILAR PURPOSES. IN THE OTHER LETTER OF THAT DATE YOU STATED:

"SCHEDULED DELIVERY DATE: THE ADDITIONAL TIME REQUIRED FOR THE EVALUATION OF OUR PROPOSAL WILL DELAY ANY AWARD BEYOND THE DATE CONTAINED IN OUR BID.

"IN SPITE OF THIS DELAY EVERY EFFORT WILL BE MADE TO MAINTAIN THE ORIGINAL DELIVERY SCHEDULE. WE RESPECTFULLY REQUEST, HOWEVER, THAT THE DELIVERY DATE OF FIRST SET OF SIX (6) UNITS BE EXTENDED TO CORRESPOND WITH THE ELAPSED TIME FROM APRIL 15TH TO DATE OF AWARD.'

THE LANGUAGE OF THE LATTER LETTER WAS INTERPRETED AS CONDITIONING YOUR OFFER TO KEEP IT OPEN FOR ACCEPTANCE BEYOND THE DATE ORIGINALLY SPECIFIED IN YOUR BID. THAT IS TO SAY, THE QUOTED LETTER WAS DEEMED TO EXTEND THE ACCEPTANCE TIME OF YOUR BID PROVIDING THE INITIAL DELIVERY DATE WAS EXTENDED A PERIOD EQUAL TO THE TIME BETWEEN APRIL 15 AND THE DATE OF AWARD. IT WAS REGARDED AS IMPROPER BY THE PROCURING AGENCY TO PERMIT SUCH MODIFICATION OF THE BID. THEREFORE, AND SINCE THE ACCEPTANCE PERIOD STIPULATED IN THE OTHER TWO BIDS RECEIVED HAD ALSO EXPIRED, THE INVITATION WAS CANCELLED AND THE PROCUREMENT READVERTISED. AWARD WAS MADE TO THE LOW RESPONSIVE BIDDER UNDER THE SECOND INVITATION. WE HELD THAT SUCH ACTION WAS PROPERLY WITHIN THE DISCRETION OF THE PROCURING AGENCY UNDER THE PROVISIONS OF 10 U.S.C. 2305 (C).

IT IS YOUR CONTENTION THAT THE REJECTION OF YOUR LOW BID AFTER IT HAD BEEN EXPOSED OPERATED TO YOUR DISTINCT DETRIMENT, RESULTING IN AN UNJUST PENALTY AGAINST YOU AND IMPAIRING THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

IT HAS ALWAYS BEEN RECOGNIZED THAT THE REJECTION OF ALL BIDS AFTER THEY HAVE BEEN EXPOSED IS A SERIOUS MATTER WHICH SHOULD BE PERMITTED ONLY FOR COGENT REASONS. MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT.CL. 669. SEE ALSO 39 COMP. GEN. 396. IN THIS INSTANCE THE INABILITY OF THE PROCURING OFFICE TO MAKE AN AWARD WITHIN THE TIME YOU ORIGINALLY AGREED TO KEEP YOUR OFFER OPEN WAS DUE IN SOME MEASURE, AS YOU HAVE CONCEDED, TO THE "EXCEPTIONS" LISTED IN THE LETTER ACCOMPANYING YOUR BID. BE THAT AS IT MAY, WE FEEL THAT THE PROCURING AGENCY ACTED IN GOOD FAITH IN TAKING THE TIME TO DETERMINE THE RESPONSIVENESS OF YOUR BID. AFTER APRIL 15 YOUR BID COULD NO LONGER BE ACCEPTED UNLESS THE TIME FOR ACCEPTANCE WAS VOLUNTARILY EXTENDED BY YOU. WE THINK YOUR LETTER OF APRIL 19, QUOTED ABOVE, WAS PROPERLY SUBJECT TO THE INTERPRETATION IT WAS GIVEN BY THE PROCURING AGENCY. BASED ON THAT INTERPRETATION, YOUR OFFER TO EXTEND THE PERIOD OF ACCEPTANCE WAS CONDITIONED ON THE EXTENSION OF THE DELIVERY SCHEDULE WHICH WOULD HAVE CONSTITUTED A MATERIAL CHANGE IN YOUR BID. IT IS FUNDAMENTAL THAT BIDS MAY NOT BE VARIED AFTER OPENING UNDER THE COMPETITIVE BID SYSTEM. 17 COMP. GEN. 554. ACCORDINGLY, WE REMAIN OF THE VIEW THAT UNDER THE CIRCUMSTANCES, THE PROCURING AGENCY WAS JUSTIFIED IN REJECTING YOUR BID, ALTHOUGH WE RECOGNIZE THAT YOUR FAILURE TO OBTAIN THE AWARD UNDER THE FIRST INVITATION WAS DUE TO A SERIES OF UNFORTUNATE CIRCUMSTANCES RATHER THAN TO ANY REAL FAILURE ON YOUR PART.

IN YOUR LETTER OF AUGUST 13, 1960, YOU RAISE SPECIFIC QUESTIONS. YOU FIRST POINT OUT THAT YOU HAD NO INFORMATION AS TO THE OBJECTIONS RAISED BY AMC WITH RESPECT TO THE "EXCEPTIONS" TAKEN IN YOUR BID UNTIL APRIL 15. YOU NOTE THAT IF THE PROCUREMENT OFFICE HAD HAD NOTICE OF SUCH OBJECTIONS PRIOR TO APRIL 15 AND HAD COMMUNICATED THEM TO YOU PROMPTLY IT IS QUITE POSSIBLE THAT THE MATTER COULD HAVE BEEN CLARIFIED AND AWARD MADE ON OR BEFORE APRIL 15. OUR INFORMATION IS THAT THE PROCURING AGENCY WAS ADVISED OF THE AMC OBJECTIONS ON APRIL 15, THE SAME DAY THAT INFORMATION WAS PASSED ON TO YOU.

YOU POINT OUT WITH RESPECT TO 10 U.S.C. 2305 (C), AUTHORIZING THE HEAD OF THE AGENCY TO REJECT ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE PUBLIC INTEREST, THAT THE PUBLIC INTEREST WOULD HAVE BEEN BETTER SERVED IF AN AWARD HAD BEEN MADE TO YOU; YOU HAD RECEIVED AN EARLIER AWARD AND IF YOUR BID ON THIS PROCUREMENT HAD BEEN FOUND ACCEPTABLE ALL OF THE UNITS IN USE WOULD HAVE BEEN STANDARD THUS ELIMINATING PROBLEMS OF PREPARATION OF OPERATING MANUALS, ETC. AS WE POINTED OUT ABOVE, THE PROCURING AGENCY, IN LIGHT OF ITS INTERPRETATION OF THE INTENT OF YOUR QUOTED LETTER OF APRIL 19, HAD NO ALTERNATIVE BUT TO REJECT YOUR BID.

YOU ALSO CONTEND THAT THE LOWER BID PRICES RECEIVED ON THE REPLACING INVITATION RESULTED SOLELY FROM THE DISCLOSURE OF YOUR BID ON THE EARLIER INVITATION AND NOT FROM THE LESS STRINGENT DELIVERY SCHEDULE IMPOSED IN THE LATER INVITATION. THE CIRCUMSTANCES WHICH CAUSED THE REDUCED PRICES CAN ONLY BE MATTERS OF CONJECTURE AT THIS POINT. IN ANY CASE WHILE, AS WE INDICATED ABOVE, IT IS REGRETTED THAT THE ADVERTISEMENT WAS CANCELLED AFTER YOUR LOW BID PRICES HAD BEEN EXPOSED, THE REASONS FOR THE LOWER PRICES ON THE PROCUREMENT DO NOT AFFECT THE VALIDITY OF THE REJECTION OF ALL BIDS UNDER THE EARLIER INVITATION.

YOUR FOURTH POINT WITH RESPECT TO THE INTERPRETATION OF YOUR LETTER OF APRIL 19 CONCERNING THE SUGGESTED RELAXATION OF THE INITIAL DELIVERY SCHEDULE HAS BEEN DISCUSSED ABOVE.

YOU NOTE THAT IN OUR EARLIER LETTER TO YOU WE INDICATED THAT YOUR BID UNDER THE FIRST INVITATION WAS ACCOMPANIED BY TWO LETTERS SETTING FORTH CERTAIN CHANGES IN THE SPECIFICATIONS AND DRAWINGS. YOU POINT OUT THAT THE LETTERS DID NOT CONTAIN CHANGES BUT RATHER INDICATED WHICH OPTIONS UNDER THE SPECIFICATIONS HAD BEEN CHOSEN. IT WAS NOT INTENDED IN OUR LETTER OF JULY 25, 1960, TO IMPLY THAT THE "EXCEPTIONS" ACCOMPANYING YOUR BID WOULD IN FACT CONSTITUTE VARIATIONS FROM THE SPECIFICATIONS. HOWEVER, IT MUST BE ACKNOWLEDGED THAT YOUR USE OF THE TERM "EXCEPTION" IN ITSELF WOULD APPEAR TO JUSTIFY THE LANGUAGE OF OUR EARLIER LETTER.

YOU FURTHER STATE WITH RESPECT TO THE URGENCY OF THE PROCUREMENT THAT EARLIER DELIVERY WOULD HAVE BEEN RECEIVED HAD YOUR LOW BID BEEN ACCEPTED. THERE IS NO QUESTION THAT THIS IS SO BUT AS WE HAVE INDICATED THE INTERPRETATION PLACED ON YOUR LETTER OF APRIL 19 DID NOT PERMIT AN AWARD ON THAT BID. THE REFERENCE IN OUR LETTER TO THE URGENCY OF THE PROCUREMENT WAS MADE SOLELY WITH RESPECT TO WHETHER AWARD UNDER THE SECOND INVITATION COULD BE DELAYED PENDING OUR DECISION AS TO THE ACTION TO BE TAKEN AS A RESULT OF YOUR PROTEST.

FINALLY, AS YOU NOTED, WE INDICATED IN OUR EARLIER LETTER THAT AWARD WAS MADE ON MAY 10, 1960, TO THE LOW BIDDER ON THE LATER INVITATION. THE INFORMATION YOU RECEIVED WAS THAT NO AWARD HAD BEEN MADE AS OF MAY 24. YOUR INFORMATION IS CORRECT. OUR STATEMENT WAS BASED ON THE DATE INSERTED BY THE PROCURING OFFICE ON THE AWARD FORM. IN FACT, THE PROCUREMENT OFFICE SUBMITTED THE PROPOSED CONTRACT ON MAY 10 TO AMC FOR APPROVAL BUT NO AWARD WAS MADE UNTIL JUNE 1. WE REGRET THE USE OF THE ERRONEOUS STATEMENT.

WITH REFERENCE TO YOUR COMMENT CONCERNING AN OPPORTUNITY FOR A HEARING BEFORE OUR OFFICE TO REFUTE THE STATEMENTS OF THE PROCURING AGENCY, YOU ARE ADVISED THAT WE HAVE NEITHER THE FACILITIES NOR THE AUTHORITY FOR HOLDING HEARINGS; OUR DECISIONS ARE BASED SOLELY ON THE WRITTEN RECORD. WE DO HOLD INFORMAL CONFERENCES IF AN INTERESTED PARTY SO REQUESTS, BUT EVEN THEN THE INFORMATION PRESENTED AND ARGUMENTS MADE AT SUCH CONFERENCES SHOULD BE REDUCED TO WRITING AND MADE PART OF THE RECORD IN ORDER TO ASSURE THEY WILL BE CONSIDERED IN ARRIVING AT OUR DECISION. WHILE YOU DID, IN YOUR LETTER OF MAY 23, 1960, INDICATE YOU WERE AVAILABLE FOR A CONFERENCE, THE RECORD DOES NOT SHOW THAT YOUR FIRM SPECIFICALLY ASKED FOR ONE. SINCE THE ESSENTIAL ISSUE ON WHICH REJECTION WAS BASED IS ONE OF LAW --- THE FACTS NOT BEING IN DISPUTE--- IT DID NOT APPEAR THAT A CONFERENCE COULD SERVE ANY USEFUL PURPOSE.