B-149997, NOV. 21, 1962

B-149997: Nov 21, 1962

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WAS CONDITIONED. THE PRICES OFFERED WERE CONSIDERED TO BE EXCESSIVE. ARE ADVISED BY THE PROCURING AGENCY THAT ALL BIDS UNDER THE INVITATION HAVE THEREFORE BEEN REJECTED AND THAT IT IS PLANNED TO PROCURE THE CLIPBOARDS AT A LATER DATE. WE HAVE CONSISTENTLY HELD THAT THE CONDITIONING OF A BID ON THE ACCEPTANCE OF ANOTHER BID SUBMITTED PURSUANT TO A SEPARATE INVITATION IS A MATERIAL QUALIFICATION REQUIRING ITS REJECTION. 37 COMP. WE CONCLUDE THAT THE SEMCO BID WAS PROPERLY REJECTED. IT IS WELL ESTABLISHED THAT ALL BIDS MAY BE REJECTED UPON A CONSIDERED ADMINISTRATIVE DETERMINATION THAT THE PRICES OFFERED IN THE OTHERWISE ACCEPTABLE BIDS ARE EXCESSIVE. WAS EMPLOYED IN THIS INSTANCE.

B-149997, NOV. 21, 1962

TO FELSENTHAL INSTRUMENTS COMPANY:

WE AGAIN REFER TO YOUR LETTER AND TELEGRAM OF SEPTEMBER 27, 1962, PROTESTING AGAINST AN AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. FNSO-9P-1698-A, ISSUED SEPTEMBER 6, 1962, BY THE FEDERAL SUPPLY SERVICE, FOR THE PROCUREMENT OF A QUANTITY OF CLIPBOARDS.

AT THE TIME SCHEDULED FOR BID OPENING, SEPTEMBER 26, 1962, FOUR BIDS HAD BEEN RECEIVED. THE LOW BID, FROM SEMCO SALES AND SERVICE, INCORPORATED, AT $7.77 PER UNIT, WAS CONDITIONED, BY AN ACCOMPANYING LETTER MADE A PART OF THE BID, ON THE AWARD OF A CONTRACT TO THAT FIRM UNDER AN EARLIER AND SEPARATE INVITATION. BIDS SUBMITTED PURSUANT TO THE EARLIER INVITATION HAD BEEN OPENED ON AUGUST 20, 1962. THE CONTRACTING AGENCY CONSIDERED THAT THE QUALIFICATION RENDERED SEMCO'S BID UNACCEPTABLE. WITH RESPECT TO THE OTHER BIDDERS, THE PRICES OFFERED WERE CONSIDERED TO BE EXCESSIVE. ARE ADVISED BY THE PROCURING AGENCY THAT ALL BIDS UNDER THE INVITATION HAVE THEREFORE BEEN REJECTED AND THAT IT IS PLANNED TO PROCURE THE CLIPBOARDS AT A LATER DATE.

WITH RESPECT TO THE SEMCO BID, WE HAVE CONSISTENTLY HELD THAT THE CONDITIONING OF A BID ON THE ACCEPTANCE OF ANOTHER BID SUBMITTED PURSUANT TO A SEPARATE INVITATION IS A MATERIAL QUALIFICATION REQUIRING ITS REJECTION. 37 COMP. GEN. 186; 35 COMP. GEN. 456; B 135983, MAY 23, 1958. ACCORDINGLY, WE CONCLUDE THAT THE SEMCO BID WAS PROPERLY REJECTED.

AS TO THE REJECTION OF THE OTHER BIDS, IT IS WELL ESTABLISHED THAT ALL BIDS MAY BE REJECTED UPON A CONSIDERED ADMINISTRATIVE DETERMINATION THAT THE PRICES OFFERED IN THE OTHERWISE ACCEPTABLE BIDS ARE EXCESSIVE. COMP. GEN. 364. IN THIS CONNECTION IT SHOULD BE NOTED THAT UNDER PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS TO THE INVITATION THE GOVERNMENT HAS SPECIFICALLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS. FURTHER, SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 253 (B), SPECIFICALLY RESERVES TO THE HEAD OF THE AGENCY THE RIGHT TO REJECT ALL BIDS WHEN HE DETERMINES SUCH ACTION TO BE IN THE PUBLIC INTEREST. THAT AUTHORITY, DELEGATED PURSUANT TO SECTION 307 (A) OF THE ACT, AS AMENDED, 41 U.S.C. 257 (A), WAS EMPLOYED IN THIS INSTANCE. UNDER THE CIRCUMSTANCES STATED WE CAN FIND NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE.