B-146571, SEP. 20, 1961

B-146571: Sep 20, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1. THE RECORD SHOWS THAT IN RESPONSE TO THE INVITATION TWO BIDS WERE RECEIVED. YOU WERE BOTH ADVISED THAT NO AWARD WOULD BE MADE UNDER THE INVITATION AND THAT THE PROCUREMENT WOULD BE READVERTISED UNDER REVISED SPECIFICATIONS. BOTH YOU AND THE LOW BIDDER WERE INFORMED THAT YOUR BIDS WERE CONSIDERED NONRESPONSIVE. STATED THAT CERTAIN EQUIPMENT COMPONENTS WERE PRICED F.O.B. IS AS FOLLOWS: "THE INTEGRATED CORRELATION AND SPECTRUM ANALYZER SYSTEM CONSISTS OF A TWO-CHANNEL SPECTRUM ANALYZER. THE SPECTRUM ANALYZER IS DESIGNATED AN-12/2. THE CORRELATOR IS DESIGNATED COR- 11. THE DIGITAL INTEGRATOR IS DESIGNATED AS DI-10. "THE SPECTRUM ANALYZER IS PRICED AT $9.

B-146571, SEP. 20, 1961

TO THE GENERAL APPLIED SCIENCE LABORATORIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1961, PROTESTING THE ACTION TAKEN UNDER INVITATION FOR BIDS NO. 161-130-61, ISSUED BY THE UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND, ON APRIL 11, 1961.

THE INVITATION REQUESTED BIDS FOR FURNISHING AN INTEGRATED CORRELATION AND SPECTRUM ANALYZER SYSTEM, MEETING PRESCRIBED SPECIFICATIONS, TO BE DELIVERED ALL TRANSPORTATION CHARGES PAID AT THE UNITED STATES NAVAL ENGINEERING STATION, ANNAPOLIS, MARYLAND. THE RECORD SHOWS THAT IN RESPONSE TO THE INVITATION TWO BIDS WERE RECEIVED, THE LOW BID OF $42,599 BY THE ORTHOLOG DIVISION, GULTON INDUSTRIES, AND YOUR BID SHOWN AS $50,000 ON THE EXECUTED BID FORM AND AS $49,969 IN AN ACCOMPANYING LETTER OF MAY 10, 1961. BY LETTERS DATED JULY 7, 1961, FROM THE CONTRACTING OFFICER, YOU WERE BOTH ADVISED THAT NO AWARD WOULD BE MADE UNDER THE INVITATION AND THAT THE PROCUREMENT WOULD BE READVERTISED UNDER REVISED SPECIFICATIONS. ALSO, IN THE SAME LETTERS, BOTH YOU AND THE LOW BIDDER WERE INFORMED THAT YOUR BIDS WERE CONSIDERED NONRESPONSIVE, THE LOW BIDDER'S BID BECAUSE OF AN EXCEPTION TAKEN TO AN ELECTRICAL SPECIFICATION REQUIREMENT, AND YOUR BID BECAUSE YOUR LETTER OF MAY 10, 1961, WHICH FORMED A PART OF YOUR BID, STATED THAT CERTAIN EQUIPMENT COMPONENTS WERE PRICED F.O.B. ORIGIN, WESTBURY, NEW YORK, INSTEAD OF F.O.B. DESTINATION, ANNAPOLIS, MARYLAND, AS REQUIRED BY THE INVITATION.

YOU PROTEST THE CANCELLATION OF THE INVITATION AND CONTEND THAT AN AWARD SHOULD BE MADE TO YOU SINCE A COMPLETE READING OF YOUR PROPOSAL SHOWS THAT THE PRICE QUOTED INCLUDED ALL COSTS INCIDENT TO DELIVERY AND ASSEMBLY AT DESTINATION.

AN EXAMINATION OF YOUR EXECUTED FORM SHOWS THE INSERTION THEREON OF THE FOLLOWING TYPEWRITTEN NOTATION:

"NOTE: THE ATTACHED LETTER, DATED MAY 10, 1961, FORMS AN INTEGRAL PART OF THIS QUOTATION. THIS LETTER, GASL PROPOSAL NO. 5498, TAKES NO EXCEPTION TO THIS INVITATION BUT DOES PRESENT ALTERNATE PROPOSALS.'

THE LETTER OF MAY 10, 1961, SO FAR AS HEREIN PERTINENT, IS AS FOLLOWS:

"THE INTEGRATED CORRELATION AND SPECTRUM ANALYZER SYSTEM CONSISTS OF A TWO-CHANNEL SPECTRUM ANALYZER, A CORRELATOR AND AN INTEGRATOR. THE SPECTRUM ANALYZER IS DESIGNATED AN-12/2, THE CORRELATOR IS DESIGNATED COR- 11, AND THE DIGITAL INTEGRATOR IS DESIGNATED AS DI-10.

"THE SPECTRUM ANALYZER IS PRICED AT $9,775. FIXED PRICE, F.O.B. WESTBURY, NEW YORK. * * *

"THE CORRELATOR, COR-11, IS PRICED AT $28,004. FIXED PRICE, F.O.B. WESTBURY, NEW YORK. * * *

"THE DIGITAL INTEGRATOR DI-10 IS PRICED AT $1,357. FIXED PRICE. * * *

"A MISCELLANEOUS CHARGE WHICH COVERS THE COST TO INTERCONNECT THE THREE UNITS DISCUSSED ABOVE TO A COMMON CONTROL PANEL AND INPUT OUTPUT CONNECTORS IS PRICED AT $4,971. FIXED PRICE.

"SINCE THE EQUIPMENT DISCUSSED ABOVE IS BASED ON DELIVERY F.O.B., WESTBURY, NEW YORK, AN ADDITIONAL COST FOR INSTALLATION OF THIS EQUIPMENT AT ANNAPOLIS IS INCLUDED. THIS COST IS $3,144. THE COST TO PROVIDE A MANUAL AS REQUIRED IN SECTION 1.5 OF THE SUBJECT INVITATION IS $2,718. THE TOTAL COST REQUIRED TO PROVIDE AN INTEGRATED CORRELATION AND SPECTRUM ANALYZER SYSTEM IS:

CHART

AN-12/2 $9,775.

COR-11 28,004.

DI-10 1,357.

MISC. 4,971..

INSTALLATION 3,144.

MANUAL 2,718.

TOTAL $49,969. INTEGRATED

IN YOUR REQUEST FOR CONSIDERATION OF THE RESPONSIVENESS OF YOUR BID, YOU CONTEND THAT SINCE YOUR QUOTED TOTAL PRICE COVERED INSTALLATION OF THE EQUIPMENT AT ANNAPOLIS, MARYLAND, THIS OBVIOUSLY INCLUDED DELIVERY OF THE EQUIPMENT TO ANNAPOLIS. IN FURTHER SUPPORT OF YOUR INTENTIONS, YOU INVITE ATTENTION TO THE ABOVE QUOTED STATEMENT IN YOUR EXECUTED BID FORM THAT THE LETTER OF MAY 10, 1961,"TAKES NO EXCEPTION TO THIS INVITATION.'

THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUND THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705 AND OTHER DECISIONS OF THIS OFFICE REFERRED TO THEREIN.

YOUR EXECUTED BID FORM AND THE ACCOMPANYING LETTER OF MAY 10, 1961, HAVE BEEN CAREFULLY CONSIDERED IN THE LIGHT OF THE FOREGOING PRINCIPLES AND WE ARE UNABLE TO CONCLUDE THEREFROM THAT THE CONTRACTING OFFICER WAS UNJUSTIFIED IN REGARDING YOUR BID AS NONRESPONSIVE. WE DO NOT QUESTION YOUR CONTENTION THAT THE INSTALLATION CHARGE SEPARATELY SHOWN IN YOUR BID WAS INTENDED TO INCLUDE DELIVERY OF THE EQUIPMENT TO DESTINATION. HOWEVER, THE FACT REMAINS THAT "INSTALLATION" OF EQUIPMENT DOES NOT NECESSARILY ENCOMPASS DELIVERY OF EQUIPMENT. NOR DO WE FIND IN YOUR BID SUFFICIENT GROUNDS TO JUSTIFY THE CONCLUSION THAT THE STATEMENT THAT THE LETTER OF MAY 10, 61,"TAKES NO EXCEPTION TO THIS INVITATION" RENDERS MEANINGLESS THE EXPRESS STATEMENTS IN THAT LETTER SHOWING THAT THE PRICES QUOTED FOR CERTAIN COMPONENTS WERE "F.O.B. WESTBURY, NEW YORK.' ALSO, THE STATEMENT IN THAT LETTER AS TO "TOTAL COST" IS SUSCEPTIBLE OF THE INTERPRETATION THAT THE AMOUNT SHOWN COVERS THE AMOUNT WHICH THE GOVERNMENT MUST PAY TO YOUR FIRM, AND DOES NOT INCLUDE THE ADDED AMOUNT WHICH THE GOVERNMENT WOULD BE REQUIRED TO PAY TO THE CARRIER FOR DELIVERY OF THE EQUIPMENT TO DESTINATION. IN CIRCUMSTANCES WHERE, AS HERE, EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, CONSISTENT WITH OUR HOLDING IN THE ABOVE CITED DECISION THE BIDDER IS NOT PERMITTED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO AFFECT THE RESPONSIVENESS OF HIS BID.

HOWEVER, SEPARATE AND APART FROM THE QUESTION OF THE RESPONSIVENESS OF YOUR BID OR WHETHER THE ACCEPTANCE OF YOUR BID WOULD HAVE REQUIRED DELIVERY F.O.B. DESTINATION, THERE IS FOR CONSIDERATION THE AUTHORITY OF THE ADMINISTRATIVE OFFICE TO REJECT ALL BIDS AND READVERTISE. PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS. MOREOVER, 10 U.S.C. 2305 (B) PROVIDES FOR THE REJECTION OF ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE GOVERNMENT'S INTEREST. IT HAS BEEN HELD CONSISTENTLY THAT AN INVITATION FOR BIDS CARRIES NO OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED AND ALL BIDS MAY BE REJECTED WHEN IT IS DETERMINED TO BE IN THE GOVERNMENT'S INTEREST TO DO SO. SEE 37 COMP. GEN. 760, 761, AND THE CASES THEREIN CITED.

IN THE LIGHT OF THE FOREGOING, THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND WHERE, AS HERE, THE REASON FOR SUCH ACTION--- ASIDE FROM THE MATTER OF THE RESPONSIVENESS OF THE BIDS RECEIVED--- WAS FOR THE PRESUMED PURPOSE OF REVISING THE SPECIFICATIONS TO MORE ADEQUATELY AND CLEARLY EXPRESS THE GOVERNMENT'S NEEDS, WE PERCEIVE NO OBJECTION TO SUCH ACTION. GOVERNMENT'S NEEDS, WE PERCEIVE NO OBJECTION TO SUCH ACTION.