B-147938, MAR. 14, 1962

B-147938, MAR. 14, 1962

TO THE HI-VOLTAGE EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1962, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 21, 1962, IN WHICH IT WAS HELD THAT THERE APPEARED NO PROPER BASIS FOR OBJECTION TO THE ACTION TAKEN BY THE PROCURING OFFICE IN REJECTING YOUR BID UNDER INVITATION NO. CIVENG-01-076-61-83 ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE CORPS OF ENGINEERS, ON JUNE 7, 1961, FOR THE PROCUREMENT OF SWITCHYARD STRUCTURES AND EQUIPMENT.

THE FACTS OF THE MATTER ARE SET OUT FULLY IN THE DECISION OF FEBRUARY 21, 1962, AND NEED NOT BE REPEATED HERE. IT IS NOT PRIMARILY A FUNCTION OF OUR OFFICE TO RESOLVE DISPUTED QUESTIONS OF FACT. UPON DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AND A CLAIMANT OR OTHER PERSON DEALING WITH THE GOVERNMENT, THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENTS OF FACT FURNISHED BY THE ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. COMP. GEN. 325; ID. 410. ALSO, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS REQUIRING THE MATERIAL, EQUIPMENT OR SERVICES. 21 COMP. GEN. 1132, 1136.

IN THE INSTANT MATTER, THE ADMINISTRATIVE OFFICERS STATE THAT THE PROVISIONS OF THE INVITATION REQUIRING CERTAIN DRAWINGS AND DATA TO BE SUBMITTED WITH BIDS ARE PROPER AND NECESSARY TO MEET THE NEEDS OF THE GOVERNMENT. THE FILE INDICATES THAT THE ACTIONS OF THE ADMINISTRATIVE OFFICERS WERE TAKEN IN GOOD FAITH, AFTER CAREFUL CONSIDERATION, FOR THE PURPOSE OF SERVING THE BEST INTERESTS OF THE GOVERNMENT, AND THAT THERE WAS A REASONABLE BASIS FOR SUCH ACTIONS, WHICH WERE APPROVED AT VARIOUS LEVELS IN THE DEPARTMENT. AS STATED IN OUR DECISION OF FEBRUARY 21, 1962,"WE HAVE HELD THAT A DESCRIPTIVE LITERATURE PROVISION MAY BE MADE A REQUIREMENT AND SHOULD BE ENFORCED IN ACCORDANCE WITH ITS TERMS, ESPECIALLY WHERE AS IN THIS CASE IT SERVES A DEFINITE AND USEFUL PURPOSE. 37 COMP. GEN. 763.' THE FILE SHOWS THAT YOUR BID NOT ONLY FAILED TO INCLUDE SOME OF THE DESCRIPTIVE LITERATURE SPECIFICALLY REQUIRED BY THE INVITATION BUT ALSO APPARENTLY PROPOSED TO FURNISH SOME EQUIPMENT WHICH DID NOT MEET THE SPECIFICATIONS, SUCH AS THE COUPLING CAPACITOR POTENTIAL DEVICES REFERRED TO IN OUR DECISION OF FEBRUARY 21, 1962.

THE ANALYSIS STATEMENT BY THE CONTRACTING OFFICER, QUOTED ON PAGES 4 AND 5 OF OUR REFERRED-TO DECISION, SHOWS THAT YOUR BID WAS DEFICIENT AND NONRESPONSIVE IN NUMEROUS RESPECTS, RESULTING IN UNCERTAINTY AS TO THE QUALITY AND DESCRIPTION OF A CONSIDERABLE PART OF THE MATERIAL PROPOSED TO BE FURNISHED BY YOU. IF FOR CONSIDERATION AT ALL, SUCH A BID WOULD REQUIRE MUCH EXPLANATION AFTER THE BID OPENING, THEREBY PLACING THE BIDDER IN A POSITION EITHER TO BECOME ELIGIBLE FOR THE AWARD OR TO REFUSE IT. IT HAS BEEN HELD CONSISTENTLY THAT SUCH A SITUATION IS FATAL TO A BID, HAVING REGARD FOR FAIRNESS TO OTHER BIDDERS AND FOR SAFEGUARDING THE INTEGRITY OF PROCUREMENT PROCEDURE UNDER COMPETITIVE BIDDING, NOTWITHSTANDING THE PECUNIARY ADVANTAGE WHICH THE GOVERNMENT MIGHT GAIN IN A PARTICULAR PROCUREMENT. 17 COMP. GEN. 554.

IN OUR DECISION OF JANUARY 3, 1961, 40 COMP. GEN. 393, IT WAS STATED (PAGE 396):

"WE RECOGNIZE THAT IN THE COURSE OF NEGOTIATIONS LEADING TO A CONTRACT BETWEEN PRIVATE PARTIES, ONE PARTY MAY FREELY SEEK CLARIFICATION OF AMBIGUOUS OR INCONSISTENT TERMS OFFERED BY THE OTHER PARTY. HOWEVER, IN THE CASE OF COMPETITIVE BIDDING ON GOVERNMENT CONTRACTS, AS YOU POINT OUT, A BIDDER MIGHT BE ABLE TO DETERMINE HIS OWN COMPETITIVE STANDING AFTER THE BIDS ARE EXPOSED BY CLARIFICATION OF HIS BID. IT HAS CONSISTENTLY BEEN STATED BY THIS OFFICE THAT IT IS IMPROPER TO ALLOW A PARTICULAR BIDDER TO CHANGE HIS BID AFTER THE PUBLIC OPENING TO THE PREJUDICE OF OTHER BIDDERS. WE HAVE GENERALLY TAKEN THE POSITION THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER OPENING SINCE THE BIDDER WOULD, IN EFFECT, HAVE AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE HIS BID CONSIDERED. * *

SEE, ALSO, 33 COMP. GEN. 441; 30 ID. 179.

UPON RECONSIDERATION OF THIS MATTER, WE REMAIN OF THE OPINION THAT THERE IS NO VALID BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE PURCHASING OFFICE IN REJECTING YOUR BID AND MAKING THE AWARD TO ANOTHER BIDDER. ACCORDINGLY, OUR DECISION OF FEBRUARY 21, 1962, IS AFFIRMED AND YOUR REQUEST THAT WE TAKE ACTION TO STOP PRODUCTION UNDER THE CONTRACT MUST BE DENIED.