B-147465, DEC. 12, 1961
Highlights
THE REJECTION OF ALL BIDS RECEIVED UNDER IFB-ORD-11-173-62-3 AND THE READVERTISEMENT UNDER IFB-0RD- 11-173-62-8 WERE PROTESTED IN THAT YOU ALLEGEDLY WERE THE ONLY COMPLETELY RESPONSIVE BIDDER ON THE NON-SET-ASIDE PORTION AND IN THE INTERVAL BETWEEN THE OPENING OF THE TWO INVITATIONS FOR BIDS THE AREA IN WHICH YOUR FIRM WOULD HAVE PERFORMED ANY CONTRACT AWARDED TO IT UNDER THE LABOR SURPLUS AREA SET-ASIDE WAS RECLASSIFIED AS A NON-LABOR SURPLUS AREA AND YOUR ELIGIBILITY FOR THE SET-ASIDE PORTION WAS THEREBY AFFECTED. THE OFFICIAL RECORD IN THIS CASE SHOWS THAT THE ORIGINAL INVITATION FOR BIDS WAS CANCELED BECAUSE IT WAS SUSCEPTIBLE TO A CONSTRUCTION THAT PERMITTED BIDDERS TO USE MATERIALS OTHER THAN .
B-147465, DEC. 12, 1961
TO PENTRON ELECTRONICS CORPORATION:
IN TELEGRAMS AND LETTER OF OCTOBER 25, 1961, FROM YOUR DIRECTOR OF GOVERNMENT CONTRACT AND SALES ADMINISTRATION, THE REJECTION OF ALL BIDS RECEIVED UNDER IFB-ORD-11-173-62-3 AND THE READVERTISEMENT UNDER IFB-0RD- 11-173-62-8 WERE PROTESTED IN THAT YOU ALLEGEDLY WERE THE ONLY COMPLETELY RESPONSIVE BIDDER ON THE NON-SET-ASIDE PORTION AND IN THE INTERVAL BETWEEN THE OPENING OF THE TWO INVITATIONS FOR BIDS THE AREA IN WHICH YOUR FIRM WOULD HAVE PERFORMED ANY CONTRACT AWARDED TO IT UNDER THE LABOR SURPLUS AREA SET-ASIDE WAS RECLASSIFIED AS A NON-LABOR SURPLUS AREA AND YOUR ELIGIBILITY FOR THE SET-ASIDE PORTION WAS THEREBY AFFECTED.
IN THE CIRCUMSTANCES, YOU SUGGEST THAT THE ORIGINAL INVITATION SHOULD BE REINSTATED OR IN THE ALTERNATIVE THAT YOU SHOULD BE ALLOWED TO RECOVER A REASONABLE PROFIT FOR THE LOSS OF BUSINESS.
THE OFFICIAL RECORD IN THIS CASE SHOWS THAT THE ORIGINAL INVITATION FOR BIDS WAS CANCELED BECAUSE IT WAS SUSCEPTIBLE TO A CONSTRUCTION THAT PERMITTED BIDDERS TO USE MATERIALS OTHER THAN ,ELGILOY" IN THE FABRICATION OF THE MAIN SPRING IN THE DETONATOR FUZE HEAD ASSEMBLIES BEING PROCURED AND SOME BIDDERS DID BID ON ALTERNATE MATERIALS, WHEREAS NO OTHER MATERIAL THAN "ELGILOY" WOULD BE SATISFACTORY TO THE TECHNICAL PERSONNEL WITHIN THE DEPARTMENT OF THE ARMY. THE CONTRACTING OFFICER'S AUTHORITY FOR THE CANCELLATION ACTION TAKEN IS TO BE FOUND IN ASPR 2-404.1 (B) (I), WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION FOR BIDS CONTAINING INADEQUATE OR AMBIGUOUS SPECIFICATIONS. WHILE IT IS UNFORTUNATE THAT YOU MAY HAVE BEEN PREJUDICED BY THE CANCELLATION ACTION, SINCE THE DUTY OF MAKING A DETERMINATION TO REJECT ALL BIDS LIES WITH THE CONTRACTING OFFICER, THIS OFFICE WILL NOT OBJECT TO SUCH ACTION PARTICULARLY WHERE, AS HERE, THE PURPOSE WAS TO CORRECT THE REQUIREMENTS IN THE INVITATION.
AS TO YOUR CLAIM FOR PROFITS, THE COURTS HAVE HELD THAT AN UNSUCCESSFUL BIDDER IS NOT ENTITLED TO RECOVER DAMAGES FOR FAILURE TO CONTRACT WITH HIM. HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F.SUPP. 409, AND AUTHORITIES CITED THEREIN. THEREFORE THERE IS NO LEGAL BASIS UPON WHICH YOUR CLAIM COULD BE ALLOWED.