B-148888, AUG. 7, 1962

B-148888: Aug 7, 1962

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TO MADDRY FIRE FIGHTING EQUIPMENT COMPANY: FURTHER REFERENCE IS MADE TO LETTER OF MAY 8. THAT ULTIMATE TRANSPORTATION COSTS COULD HAVE BEEN ASCERTAINED BY THE BIDDER. THAT EXPOSURE OF PRICES SUBMITTED IN RESPONSE TO THE INITIAL INVITATION WAS PREJUDICIAL. THEREFORE AWARD SHOULD HAVE BEEN MADE TO YOU AS LOW BIDDER UNDER THE FIRST SOLICITATION. OFFERS WERE SOUGHT ON THE FURNISHING OF THREE DIFFERENT SIZES OF FIRE EXTINGUISHERS IN VARYING QUANTITIES. IT WAS STIPULATED THEREIN ON THE QUALIFIED PRODUCTS LIST PRIOR TO BID OPENING. THE MODEL YOU OFFERED HAD NOT BEEN ACCEPTED FOR INCLUSION IN SUCH QUALIFIED LIST ON OR BEFORE THE DATE THE BIDS WERE OPENED. OR 25 DAYS COULD HAVE BEEN MADE TO YOU UNDER THAT INVITATION SINCE YOUR BID WAS NOT RESPONSIVE.

B-148888, AUG. 7, 1962

TO MADDRY FIRE FIGHTING EQUIPMENT COMPANY:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 8, 1962, FROM YOUR INVITATION FOR BIDS NO. 40-604-62-509, AND THE AWARD OF A CONTRACT TO UNAMBIGUOUS; THAT ULTIMATE TRANSPORTATION COSTS COULD HAVE BEEN ASCERTAINED BY THE BIDDER; THAT EXPOSURE OF PRICES SUBMITTED IN RESPONSE TO THE INITIAL INVITATION WAS PREJUDICIAL; AND, THEREFORE AWARD SHOULD HAVE BEEN MADE TO YOU AS LOW BIDDER UNDER THE FIRST SOLICITATION.

THE RECORD DISCLOSES THAT UNDER INVITATION FOR BIDS NO. 40-604-62 509, OFFERS WERE SOUGHT ON THE FURNISHING OF THREE DIFFERENT SIZES OF FIRE EXTINGUISHERS IN VARYING QUANTITIES. IT WAS STIPULATED THEREIN ON THE QUALIFIED PRODUCTS LIST PRIOR TO BID OPENING. WHILE YOU SUBMITTED A BID ON ITEM 1, CALLING FOR 8,417 EXTINGUISHERS OF ONE QUART CAPACITY, THE MODEL YOU OFFERED HAD NOT BEEN ACCEPTED FOR INCLUSION IN SUCH QUALIFIED LIST ON OR BEFORE THE DATE THE BIDS WERE OPENED, OR SEPTEMBER 14, 1961. IN FACT, YOUR SUBMISSION OF DATA ON WRIGHT-PATTERSON AIR FORCE BASE, UNTIL OCTOBER 9, 1961, OR 25 DAYS COULD HAVE BEEN MADE TO YOU UNDER THAT INVITATION SINCE YOUR BID WAS NOT RESPONSIVE.

WITH RESPECT TO THE CANCELLATION OF THE SUBJECT INVITATION AND THE READVERTISEMENT, IT IS TO BE NOTED THAT INITIALLY BIDDERS WERE ADVISED THAT DELIVERY WOULD BE ACCEPTED F.O.B. ORIGIN, WITH SHIPPING INSTRUCTIONS TO BE FURNISHED AT A LATER DATE. INADVERTENTLY, THE NUMBER OF ESTIMATED DESTINATIONS WAS OMITTED AND, AS A RESULT BIDDERS WERE UNABLE TO COMPUTE WITH ANY DEGREE OF ACCURACY THE COST OF PACKING AND HANDLING WHICH ARE MATERIAL FACTORS, AND WHICH WOULD INCREASE PROPORTIONATELY WITH ANY ADDITIONAL NUMBER OF DESTINATIONS. UNDER THOSE CONDITIONS AT LEAST ONE BIDDER LIMITED ITS OFFER TO ONE DESTINATION. SINCE PROSPECTIVE SUPPLIERS OF THE EQUIPMENT WERE NOT AFFORDED A COMMON GROUND UPON WHICH TO COMPUTE THEIR OFFERS WE CONCUR WITH THE CONCLUSIONS OF THE PROCUREMENT OFFICIALS THAT THE INVITATION WAS FATALLY DEFECTIVE AND CANCELLATION THEREOF WAS PROPER.

WE AGREE WITH YOUR ATTORNEY'S CONTENTION THAT CANCELLATION OF AN INVITATION SHOULD AVOIDED, WHERE POSSIBLE, BECAUSE OF THE OBVIOUS PREJUDICIAL EFFECTS OF THE DISCLOSURE OF ALL BIDDERS' QUOTATIONS. HOWEVER, A PRINCIPAL EXCEPTION THERETO IS WHERE, AS HERE, SUBSTANTIAL INACCURACIES OR OMISSIONS AS TO THE TERMS AND CONDITIONS OF AN INVITATION CREATE A DEFICIENCY IN ANY MATERIAL PHASE OF THE SUBJECT MATTER OF THE PROCUREMENT. IN OFFICE DECISION CITED BY YOUR ATTORNEY, B-143153, 40 COMP. GEN. 160, WE HELD THAT AN INVITATION WHICH DID NO REQUIRE BIDDERS TO STATE GUARANTEED SHIPPING WEIGHTS, NOR ESTABLISH LIABILITY FOR ADDITIONAL TRANSPORTATION COSTS IN CASE OF VARIATION BETWEEN THE GUARANTEED AND ACTUAL WEIGHTS, DOES NOT PROVIDE FOR EQUITABLE BID EVALUATION AND, THEREFORE, WAS DEFECTIVE. IN THAT CASE AWARD HAD BEEN MADE, AND WHILE THE GOVERNMENT'S INTEREST REQUIRED ACCEPTANCE OF THE DELIVERED PORTION WE DIRECTED CANCELLATION OF THE CONTRACT AS TO THE BALANCE OF THE UNITS.

WITH RESPECT TO YOUR ATTORNEY'S REQUEST THAT AWARD OF A CONTRACT BE MADE TO YOU UNDER ESTABLISHED SET-ASIDE PROCEDURE, YOUR ATTENTION IS INVITED TO PARAGRAPH T OF THE INVITATION COVERING NEGOTIATIONS WITH LABOR SURPLUS AREAS AND SMALL BUSINESS CONCERNS, WHICH PROVIDES THAT NEGOTIATION FOR THE SET-ASIDE PORTION OF THE PROCUREMENT WILL BE UNDERTAKEN ONLY WITH THOSE BIDDERS WHO SUBMIT A RESPONSIVE BID ON THE NON-SET-ASIDE PORTION. FURTHERMORE IT SEEMS PROBABLE THAT DELIVERIES HAVE NOW BEEN COMPLETED BY THE SUCCESSFUL BIDDER OR BIDDERS.

IN VIEW OF THE FOREGOING WE PERCEIVE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN AND YOUR PROTEST MUST BE DENIED.