B-145874, JUN. 5, 1961

B-145874, JUN. 5, 1961

TO GEORGE J. JILLSON, CONTRACTING OFFICER, MILITARY PETROLEUM SUPPLY AGENCY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1961, WITH ENCLOSURES, FILE REFERENCE 41 IFB 61-162, SUBMITTING FOR OUR CONSIDERATION AND DECISION THE PROTEST OF INTERNATIONAL FUELING COMPANY, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 61-162, DATED APRIL 12, 1961, COVERING AIRCRAFT FUEL DELIVERY SERVICES TO BE PERFORMED DURING THE PERIOD FROM JULY 1, 1961, TO JUNE 30, 1962, AT THE NAVAL AIR STATION, GLYNCO, GEORGIA.

THE RECORD DISCLOSES THAT THE SUBJECT INVITATION WAS AMENDED BY THE ISSUANCE OF AMENDMENT NO. 1, DATED APRIL 25, 1961, WHICH, IT IS REPORTED, WOULD DECREASE THE SERVICE REQUIREMENTS BY A SUBSTANTIAL AMOUNT. THE PROTESTING COMPANY SUBMITTED A BID BASED UPON THE INITIAL REQUIREMENTS SET OUT IN THE INVITATION BUT, THROUGH FAILURE TO RECEIVE A COPY OF THE SUBJECT AMENDMENT, MADE NO REDUCTION IN ITS PROPOSAL COMMENSURATE WITH THE DECREASED SERVICES REQUIRED UNDER THE MODIFICATION TO THE SAID INVITATION. IN THIS CONNECTION, IT IS REPORTED THAT RECORDS OF YOUR OFFICE INDICATE THIS AMENDMENT WAS DISPATCHED TO INTERNATIONAL. IT IS STATED THAT IF THE AMENDMENT HAD BEEN RECEIVED AND CONSIDERED BY THE PROTESTING BIDDER, ITS OFFER PROBABLY WOULD HAVE BEEN REDUCED TO A FIGURE BELOW THAT OF THE ONLY OTHER BID SUBMITTED. IN VIEW THEREOF THE PROTESTING FIRM REQUESTS THAT IT BE PERMITTED TO NEGOTIATE WITH THE CONTRACTING OFFICER FOR THE CONTRACT, AND TO EXCLUDE FROM THOSE PROCEEDINGS THE LOW RESPONSIVE BIDDER.

IN A CASE INVOLVING A SOMEWHAT SIMILAR SITUATION, REPORTED IN 40 COMP. GEN. 126, WE HELD THAT WHERE A LOW BID WAS NOT RESPONSIVE TO AN AMENDED INVITATION AT THE TIME OF OPENING, A LATER MODIFICATION OF ITS BID TO EMBODY THE REVISED CONDITIONS COULD NOT BE CONSIDERED SINCE SUCH ACTION WOULD BE PREJUDICIAL TO THE OTHER BIDDERS. WHILE THE FACTS IN THE INSTANT CASE DIFFER THEREFROM IN THAT THE PRESENT PROTESTING BIDDER'S OFFER WAS RESPONSIVE, THE RULE STATED IN THE PREVIOUSLY MENTIONED DECISION IS EQUALLY FOR APPLICATION HERE SINCE THE END RESULT WOULD BE THE SAME, THAT IS, DISPLACEMENT OF THE LOWEST RESPONSIVE BID. HENCE, THERE IS NO AUTHORITY TO PERMIT INTERNATIONAL FUELING COMPANY, INCORPORATED, TO REDUCE ITS BID FOR THE PURPOSES OF THIS INVITATION, NOR WOULD IT BE PROPER TO ENTER INTO NEGOTIATIONS WITH THE LATTER COMPANY TO THE EXCLUSION OF THE SUCCESSFUL BIDDER.

IT IS, OF COURSE, TO BE REGRETTED THAT INTERNATIONAL FAILED TO RECEIVE A COPY OF THE AMENDMENT, REGARDLESS OF WHETHER THE FAULT LIES WITH THE PROCUREMENT OFFICE, THE MAILS, OR WITH ITS OWN STAFF. IN ANY EVENT IF, AS YOU INDICATE, TIME WILL NOT PERMIT CANCELLATION OF THE INVITATION AND READVERTISEMENT FOR THE REQUIRED SERVICES, AWARD MAY BE MADE TO THE LOW RESPONSIVE BIDDER.