B-150713, MARCH 26, 1963, 42 COMP. GEN. 523

B-150713: Mar 26, 1963

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THERE IS NO COMPELLING REASON TO CANCEL THE INVITATION. EVEN THOUGH THE BETTER PROCEDURE WOULD HAVE BEEN TO AMEND THE INVITATION TO SUBSTITUTE THE FEDERAL SPECIFICATIONS. WHICH MATTER WAS THE SUBJECT OF A REPORT DATED JANUARY 28. THE INVITATION WAS ISSUED ON OCTOBER 4. THE ITEM WAS DESCRIBED IN THE INVITATION AS FOLLOWS: SWEEPER. IT IS REPORTED THAT ON OCTOBER 9. 5 DAYS AFTER THE INVITATION WAS ISSUED. THE CONTRACTING OFFICER REPORTS THAT AT FIRST HE WAS NOT ABLE TO VERIFY THIS INFORMATION. IS HEREBY CANCELED. (THESE MODIFICATIONS WERE CONTAINED IN THE INVITATION.). THE BID OPENING WAS HELD. BIDS WERE RECEIVED FROM WAYNE MANUFACTURING COMPANY. ELGIN SWEEPER WAS EVALUATED AS THE LOW BIDDER AND WAYNE MANUFACTURING AS THE SECOND LOW BIDDER.

B-150713, MARCH 26, 1963, 42 COMP. GEN. 523

CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - SUPERSEDED SPECIFICATION USE THE USE IN AN INVITATION FOR BIDS OF A MILITARY SPECIFICATION THAT HAD BEEN SUPERSEDED BY A FEDERAL SPECIFICATION WHICH DID NOT COME TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL AFTER THE INVITATION FOR BIDS HAD BEEN ADVERTISED DOES NOT REQUIRE ALL BIDS RECEIVED TO BE DISCARDED AND THE PROCUREMENT READVERTISED, NOTWITHSTANDING THE OBLIGATION UNDER PARAGRAPH 1-202 OF THE ARMED SERVICES PROCUREMENT REGULATION TO USE APPLICABLE SPECIFICATIONS, NO SIGNIFICANT DIFFERENCE EXISTING BETWEEN THE PRODUCTS DESCRIBED IN THE MILITARY AND FEDERAL SPECIFICATIONS, THERE IS NO COMPELLING REASON TO CANCEL THE INVITATION, CANCELLATION AFTER BID OPENING, PURSUANT TO PARAGRAPH 2-404.1 (B) (II) ON THE GROUND OF SPECIFICATION REVISION, BEING PROPERLY LIMITED TO AN AWARD UNDER THE ORIGINAL SPECIFICATION WHICH WOULD NOT SERVE THE GOVERNMENT'S ACTUAL NEEDS, AND EVEN THOUGH THE BETTER PROCEDURE WOULD HAVE BEEN TO AMEND THE INVITATION TO SUBSTITUTE THE FEDERAL SPECIFICATIONS, READVERTISING THE PROCUREMENT WOULD BE MORE PREJUDICIAL TO THE BIDDERS AND THE COMPETITIVE BIDDING SYSTEM THAN AN AWARD UNDER AN IRREGULAR SPECIFICATION.

TO THE SECRETARY OF THE ARMY, MARCH 26, 1963:

THIS REFERS TO A PROTEST BY THE WAYNE MANUFACTURING COMPANY, AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. ENG-11 184-63-C-104JD, WHICH MATTER WAS THE SUBJECT OF A REPORT DATED JANUARY 28, 1963, FROM YOUR DEPARTMENT TO THIS OFFICE.

THE INVITATION WAS ISSUED ON OCTOBER 4, 1962, BASED ON A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST (MIPR 249-3-6027 (AE) 12, DATED 23 AUGUST 1962) FOR 16 ROAD SWEEPERS FOR THE UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA. THE ITEM WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

SWEEPER, ROTARY, SELF-PROPELLED, GASOLINE ENGINE DRIVEN, 3 CUBIC YARD HOPPER CAPACITY, WITH ONE GUTTER BROOM, WITH WATER SPRAY SYSTEM, CONFORMING TO MILITARY SPECIFICATION MIL-S-15619D DATED 24 NOVEMBER 1958 WITH AMENDMENT 1 DATED 4 MARCH 1960 AND THE HEREIN SET FORTH MODIFICATIONS TO THIS SPECIFICATION. (FSC-C3825).

IT IS REPORTED THAT ON OCTOBER 9, 1962, 5 DAYS AFTER THE INVITATION WAS ISSUED, REPRESENTATIVES OF THE WAYNE MANUFACTURING COMPANY ADVISED THE CONTRACTING OFFICE THAT MILITARY SPECIFICATION MIL-S-15619D WHICH FORMED A PART OF THE SPECIFICATIONS HAD BEEN SUPERSEDED BY FEDERAL SPECIFICATION OO -S-875A. THE CONTRACTING OFFICER REPORTS THAT AT FIRST HE WAS NOT ABLE TO VERIFY THIS INFORMATION. BUT ON OR ABOUT OCTOBER 22, 1962, HIS OFFICE DID RECEIVE THE INITIAL DISTRIBUTION OF NOTICE I TO MIL-S-15619D, DATED JULY 18, 1962, WHICH STATES AS FOLLOWS:

SPECIFICATION MIL-S-15619D, WITH AMENDMENT 1 DATED 4 MARCH 1960, IS HEREBY CANCELED. FUTURE PROCUREMENT OF ROTARY SELF-PROPELLED STREET SWEEPERS SHOULD BE MADE UNDER FEDERAL SPECIFICATION OO-S-875, SWEEPER, ROTARY, SELF-PROPELLED (STREET TYPE).

THE CONTRACTING OFFICER REPORTS THAT HE THEN INFORMED THE REQUISITIONER OF NOTICE I TO MIL-S-15619D, AND THAT THE REQUISITIONER ADVISED HIM THAT THE REQUIREMENT SHOULD BE PROCESSED AS WRITTEN, I.E., IN CONFORMITY WITH MIL-S-15619D WITH AMENDMENT I AND THE MODIFICATIONS CITED IN THE REQUISITION. (THESE MODIFICATIONS WERE CONTAINED IN THE INVITATION.)

THE BID OPENING WAS HELD, AS SCHEDULED, ON NOVEMBER 5, 1962, UNDER THE ORIGINAL SPECIFICATIONS, AND BIDS WERE RECEIVED FROM WAYNE MANUFACTURING COMPANY, ELGIN SWEEPER COMPANY, AND THE CONVEYOR COMPANY. ELGIN SWEEPER WAS EVALUATED AS THE LOW BIDDER AND WAYNE MANUFACTURING AS THE SECOND LOW BIDDER.

WAYNE PROTESTS AGAINST AN AWARD UNDER THIS INVITATION ON THE BASIS THAT IT WAS ADVERTISED ILLEGALLY DUE TO THE USE OF THE SUPERSEDED SPECIFICATION. YOUR DEPARTMENT REPORTS THAT THERE ARE NO SIGNIFICANT DIFFERENCES BETWEEN THE PRODUCT DESCRIBED IN THE SUPERSEDED MILITARY SPECIFICATION, AS MODIFIED BY THE INVITATION, AND THE PRODUCT DESCRIBED IN THE FEDERAL SPECIFICATION. IT REPORTS THAT BOTH THESE SPECIFICATIONS DESCRIBE COMMERCIAL PRODUCTS AND WERE COORDINATED WITH INDUSTRY PRIOR TO PUBLICATION. IT IS POINTED OUT ALSO THAT WAYNE HAS SUPPLIED SWEEPERS CONFORMING TO THE MILITARY SPECIFICATION IN THE PAST AND IT OFFERED TO MEET THE REQUIREMENTS OF THIS INVITATION.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1202 PROVIDES THAT EXCEPT IN THE CASE OF CERTAIN TYPES OF PURCHASES, AS LISTED UNDER ASPR 1-1202 (B), APPLICABLE FEDERAL SPECIFICATIONS ARE MANDATORY FOR USE, UNLESS DETERMINED BY THE DEPARTMENT OF DEFENSE TO BE INAPPLICABLE FOR USE. (SEE ALSO APP 1-1202 (A) AND NPD 1-1250, 1251.) THIS OFFICE HAS RECOGNIZED THAT THE CONTRACTING OFFICER IS BOUND UNDER ASPR 1-1202 TO USE THE APPLICABLE SPECIFICATION, 41 COMP. GEN. 76, 80; B-145477, MAY 25, 1961.

IT APPEARS THAT THE SUPERSEDED SPECIFICATION WAS USED ONLY BECAUSE INITIAL DISTRIBUTION OF THE CANCELING NOTICE HAD NOT BEEN ACCOMPLISHED AT THE TIME WHEN THE PURCHASE REQUEST WAS PREPARED (AUGUST 23, 1962) AND THE INVITATION WAS ISSUED (OCTOBER 4, 1962). WAYNE INDICATES THAT THERE ARE PERTINENT DIFFERENCES BETWEEN THE SUPERSEDED MILITARY SPECIFICATION AND THE FEDERAL SPECIFICATION, BUT HAS FAILED TO POINT OUT ANY SIGNIFICANT DIFFERENCES BETWEEN THE MILITARY SPECIFICATION AS MODIFIED AND THE FEDERAL SPECIFICATION WHICH RESULTED IN ANY PREJUDICE TO ITS BID.

ASPR 2-208 STATES AS FOLLOWS:

* * * CANCELLATION OF AN INVITATION FOR BIDS USUALLY INVOLVES THE LOSS OF TIME, EFFORT, AND MONEY, SPENT BY GOVERNMENT AND BIDDERS IN CARRYING THE PROCUREMENT PROCESS UP TO THE POINT OF CANCELLATION. INVITATIONS FOR BIDS SHOULD NOT BE CANCELED UNLESS CANCELLATION IS CLEARLY IN THE PUBLIC INTEREST, SUCH AS WHERE THERE IS NO LONGER A REQUIREMENT FOR THE SUPPLIES OR SERVICES OR WHERE AMENDMENTS TO THE INVITATION WOULD BE OF SUCH MAGNITUDE THAT A NEW INVITATION IS DESIRABLE. * * *

WHILE ASPR 2-404.1 (B) (II) CITES AS A POSSIBLE REASON FOR CANCELLING AN INVITATION AFTER BID OPENING THE FACT THAT THE SPECIFICATIONS HAVE BEEN REVISED, IT WOULD APPEAR THAT CANCELLATION ON THAT GROUND SHOULD PROPERLY BE LIMITED TO INSTANCES IN WHICH AWARD UNDER THE ORIGINAL SPECIFICATIONS WOULD NOT SERVE THE GOVERNMENT'S ACTUAL NEEDS. IN ANY EVENT, THE GOVERNING POLICY STATED BY THE REGULATION IS THAT AN INVITATION SHOULD NOT BE CANCELLED AFTER THE BID OPENING UNLESS THERE IS A "COMPELLING REASON" TO DO SO. ASPR 2-404.1 (A).

WHILE WE ARE INCLINED TO THINK THAT THE BETTER PROCEDURE WOULD HAVE BEEN TO SUBSTITUTE THE FEDERAL SPECIFICATION IN PLACE OF THE SUPERSEDED SPECIFICATION BY APPROPRIATE AMENDMENT TO THE INVITATION, WE FEEL THAT READVERTISING THE PROCUREMENT AFTER THE BIDS HAVE BEEN EXPOSED WOULD BE FAR MORE PREJUDICIAL TO THE BIDDERS AND THE COMPETITIVE BIDDING SYSTEM THAN AN AWARD ON AN IRREGULAR SPECIFICATION. SO LONG AS THE GOVERNMENT'S NEEDS ARE ADEQUATELY MET WE WILL NOT OBJECT TO AWARD UNDER THIS INVITATION.