B-143773, FEB. 3, 1961

B-143773: Feb 3, 1961

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TO FLIGHT FUELING AND MAINTENANCE CORP.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. WAS THE LOWEST OFFER RECEIVED. AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM. BY THE SUBJECT INVITATION BIDS WERE SOUGHT TO FURNISH A QUANTITY OF 9-TON AIRCRAFT LOADERS. TWO BIDS WERE RECEIVED AND FORWARDED TO THE BUREAU OF NAVAL WEAPONS FOR TECHNICAL EVALUATION. WAS FOUND TO CONTAIN NUMEROUS DEFICIENCIES AND DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS WHICH WERE ITEMIZED IN DETAIL BY THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL) IN HIS LETTER OF NOVEMBER 14. TO AVOID REPETITION THOSE FINDINGS WILL NOT BE REPEATED. THE CONCLUSION OF THE DEPARTMENT OF THE NAVY THAT YOUR BID WAS NOT RESPONSIVE. SINCE THE DEVIATIONS ARE MATERIAL THEY MAY NOT BE WAIVED AS INFORMALITIES OR MINOR IRREGULARITIES.

B-143773, FEB. 3, 1961

TO FLIGHT FUELING AND MAINTENANCE CORP.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1960, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 600-1799-60, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C. YOU CONTEND IN SUBSTANCE THAT YOUR JOINT PROPOSAL COMPLIED WITH THE TECHNICAL REQUIREMENTS OF THE INVITATION, AND THAT SINCE YOUR BID, ORIGINALLY, WAS THE LOWEST OFFER RECEIVED, AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM. ALSO, YOU QUESTION THE PROPRIETY OF THE CONTRACTING OFFICIALS' ACTION, UNDER THIS TYPE OF COMPETITIVE PROCUREMENT, IN NEGOTIATING WITH CRESCI AVIATION EQUIPMENT COMPANY AFTER BID OPENING TO OBTAIN A LOWER PRICE THAN THEIR INITIAL OFFER.

BY THE SUBJECT INVITATION BIDS WERE SOUGHT TO FURNISH A QUANTITY OF 9-TON AIRCRAFT LOADERS, TYPE MC-2, IN STRICT ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS MADE A PART THEREOF. TWO BIDS WERE RECEIVED AND FORWARDED TO THE BUREAU OF NAVAL WEAPONS FOR TECHNICAL EVALUATION. THE BID SUBMITTED BY YOU JOINTLY WITH EXCELSIOR PLIMPTRUCK COMPANY, WAS FOUND TO CONTAIN NUMEROUS DEFICIENCIES AND DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS WHICH WERE ITEMIZED IN DETAIL BY THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL) IN HIS LETTER OF NOVEMBER 14, 1960, TO YOUR MR. GRAHAM. TO AVOID REPETITION THOSE FINDINGS WILL NOT BE REPEATED. HOWEVER, IT MAY BE STATED THAT THE DIFFERENCES IN DESIGN AND CONSTRUCTION OF THE UNIT OFFERED BY YOU JUSTIFIES, IN OUR OPINION, THE CONCLUSION OF THE DEPARTMENT OF THE NAVY THAT YOUR BID WAS NOT RESPONSIVE. SINCE THE DEVIATIONS ARE MATERIAL THEY MAY NOT BE WAIVED AS INFORMALITIES OR MINOR IRREGULARITIES.

THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND THEIR DETERMINATIONS OF THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. AS TO THIS PROCUREMENT WE FEEL THAT THE SPECIFICATIONS HAVE NOT BEEN SHOWN TO BE RESTRICTIVE; THAT THE DETERMINATION AS TO THE NONRESPONSIVENESS OF YOUR BID IS ADEQUATELY SUPPORTED BY THE RECORD; AND THAT THERE IS NO EVIDENCE TO WARRANT QUESTIONING THE AWARD ON THE GROUND OF FAVORITISM, BAD FAITH, OR PERSONAL PREFERENCE.

MUCH EMPHASIS IS PLACED UPON YOUR CONTENTION THAT "PERMITTING CRESCI TO LOWER THEIR BID PRICE IN ORDER FOR IT TO BE BELOW OUR BID * * * IS AN UNCONSCIONABLE ACTION IN VIOLATION OF THE PROCUREMENT REGULATIONS.' SINCE YOUR BID WAS NOT RESPONSIVE AND THEREFORE COULD NOT BE CONSIDERED FOR AWARD OF A CONTRACT UNDER THIS PROCUREMENT, IT IS OBVIOUS THAT THE NEGOTIATION WITH THE CRESCI FIRM, WHICH RESULTED IN A DOWNWARD ADJUSTMENT OF ITS OFFERING UNIT PRICE FOR THE EQUIPMENT, WAS IN NO WAY PREJUDICIAL TO YOUR RIGHTS OR INTEREST. AND, SINCE NO OTHER RESPONSIVE BIDS WERE RECEIVED IT WAS IN THE GOVERNMENT'S INTEREST TO DETERMINE WHETHER THE SOLE RESPONSIVE BID QUOTED A FAIR AND REASONABLE PRICE. AS YOU WERE ADVISED BY THE ASSISTANT SECRETARY, SUCH ACTION IS IN ACCORD WITH ESTABLISHED PROCEDURE IN THE VARIOUS GOVERNMENTAL DEPARTMENTS AND AGENCIES IN INSTANCES WHERE ONLY ONE RESPONSIVE BID IS SUBMITTED IN RESPONSE TO AN INVITATION. INDEED, WE HAVE HELD THAT A LOWER PRICE MAY BE NEGOTIATED AFTER BID OPENING WITH THE LOWEST RESPONSIVE BIDDER EVEN WHERE A NUMBER OF BIDS HAVE BEEN RECEIVED. 38 COMP. GEN. 674. THE GOVERNMENT'S RIGHT TO DO THIS HAS ALSO BEEN RECOGNIZED BY THE COURT OF CLAIMS. LEITMAN V. UNITED STATES, 104 CT.CL. 324. ACCORDINGLY YOUR CONTENTION THAT EITHER THE CONTRACT SHOULD BE AWARDED TO YOU, OR THE PROCUREMENT SHOULD BE READVERTISED IS WITHOUT MERIT.

IN THE CIRCUMSTANCES IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN.