B-149672, JUN. 3, 1963

B-149672, JUN. 3, 1963

TO SPACE AERO PRODUCTS COMPANY, INC.:

WE REFER AGAIN TO YOUR TELEGRAM AND LETTER OF AUGUST 10 AND 14, 1962, RESPECTIVELY PROTESTING AGAINST THE CANCELLATION OF INVITATIONS FOR BIDS NOS. 383-1140-62 AND 383-1357-62 ISSUED MAY 3, 1962 AND MAY 28, 1962, RESPECTIVELY BY THE U.S. NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, FOR THE PURCHASE OF LOW PRESSURE OXYGEN AND AIR HOSE ASSEMBLIES.

BOTH INVITATIONS INCLUDED AS PART OF THE SPECIFICATIONS SAPCO DRAWING NO. P10018, PREPARED BY YOUR FIRM, WHICH CALLED FOR THE USE OF A REPLACEABLE PIN. BIDS WERE OPENED UNDER THE EARLIER ADVERTISEMENT ON JUNE 1, 1962, AND UNDER THE LATER ONE ON JUNE 27, 1962. AFTER OPENING, UPON A DETERMINATION THAT THE SAPCO DRAWING CONTAINED CERTAIN DEFICIENCIES AND DISCREPANCIES WHICH COULD HAVE AN ADVERSE EFFECT ON COMPETITION, THE INVITATIONS WERE WITHDRAWN WITH THE OBJECT OF READVERTISING USING A CORRECTED DRAWING.

AS LOW BIDDER ON THE TWO INVITATIONS YOU PROTEST THEIR WITHDRAWAL ON THE BASIS THAT SUCH ACTION AFTER OPENING IS PREJUDICIAL TO YOUR INTERESTS AS LOW BIDDER AND THAT THE PART IN QUESTION COMPRISES SUCH A MINOR PORTION OF THE ARTICLE AS HARDLY TO WARRANT THE ACTION TAKEN AFTER PRICE DISCLOSURE.

ARTICLE 8 (B) OF THE TERMS AND CONDITIONS OF BOTH INVITATIONS SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL BIDS. IN ADDITION, ALL BIDS MAY BE REJECTED PURSUANT TO THE AUTHORITY AT 10 U.S.C. 2305 (C) WHENEVER IT IS DETERMINED THAT SUCH ACTION IS IN THE PUBLIC INTEREST. FURTHER, IT HAS BEEN CONSISTENTLY HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND BY THE COURTS THAT THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND WHERE, AS HERE, IT IS SHOWN THAT THE PURPOSE OF SUCH ACTION IS TO CLARIFY SPECIFICATIONS IN ORDER TO OBTAIN FOR THE GOVERNMENT THE TYPE OF EQUIPMENT DETERMINED BY THE GOVERNMENT'S DULY CONSTITUTED AGENTS TO REPRESENT ITS MINIMUM REQUIREMENTS, WE PERCEIVE NO OBJECTION TO SUCH ACTION. SEE 17 COMP. GEN. 554.

WE ARE KEENLY AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF, AND ARE REQUIRED TO WORK IN THE BEST INTERESTS OF, THE GOVERNMENT, THEIR ACTIONS IN REJECTING BIDS AND READVERTISING MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WILL BE BEST SERVED THEREBY.

IN THIS INSTANCE THE CONTRACTING AGENCY DETERMINED AFTER DUE CONSIDERATION OF THE MATTER THAT THE SPECIFICATIONS WERE NOT SET FORTH SO CLEARLY AND ACCURATELY AS TO INSURE COMPETITION ON AN EQUAL FOOTING AS CONTEMPLATED BY THE LAW GOVERNING FORMAL ADVERTISING. SEE 17 COMP. GEN. 789, 790. IN VIEW THEREOF AND OF THE DISCRETION VESTED IN THE CONTRACTING AGENCY WITH RESPECT TO SUCH MATTERS, WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY.