B-151729, SEP. 20, 1963

B-151729: Sep 20, 1963

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SIXTEEN PIECES OF SURPLUS GOVERNMENT MACHINERY AND EQUIPMENT WERE INCLUDED IN THE INVITATION UNDER NINE ITEMS. THE NATIONAL AGGREGATE BID FOR THE ITEM WAS HIGHER THAN THE SUM OF THE HIGHEST BIDS SUBMITTED ON AN INDIVIDUAL MACHINE BASIS. IT WAS DETERMINED THAT THE LANGUAGE OF THE INVITATION AS QUOTED ABOVE WAS AMBIGUOUS AND MIGHT WELL HAVE HAD THE EFFECT OF RESTRICTING COMPETITION ON ITEM 4 SINCE THE TERM "ITEM" HAD BEEN VARIOUSLY INTERPRETED BY THE BIDDERS TO MEAN ALL THE MACHINES INCLUDED IN ITEM 4 OR EACH INDIVIDUAL PIECE OF EQUIPMENT WITHIN THAT ITEM. AS A CONSEQUENCE ALL BIDS ON ITEM 4 WERE REJECTED AND THE THREE PRESSES INCLUDED THEREIN WERE OFFERED AT A LATER SALE AND SOLD FOR APPROXIMATELY $6.

B-151729, SEP. 20, 1963

TO U.S. EQUIPMENT COMPANY:

WE REFER TO YOUR TELEGRAM OF JUNE 7, 1963, PROTESTING AGAINST THE HANDLING OF BIDS UNDER AN INVITATION COVERING THE SALE OF MACHINERY AND EQUIPMENT UNDER CONTRACT NO. AF33 (600) 5105.

THE INVITATION DATED MAY 3, 1963, PROVIDED "BIDS MUST BE ON AN INDIVIDUAL ITEM BASIS.' SIXTEEN PIECES OF SURPLUS GOVERNMENT MACHINERY AND EQUIPMENT WERE INCLUDED IN THE INVITATION UNDER NINE ITEMS. ITEM 4 OF THE INVITATION, THE ONE HERE AT ISSUE, INCLUDED THREE SIMILAR PRESSES. ALL BIDDERS SUBMITTED BIDS ON THE INDIVIDUAL PIECES OF EQUIPMENT INCLUDED IN ITEM 4. ONE BIDDER, NATIONAL MACHINE EXCHANGE, INC., ALSO SUBMITTED A BID FOR ITEM 4 AS A WHOLE. THE NATIONAL AGGREGATE BID FOR THE ITEM WAS HIGHER THAN THE SUM OF THE HIGHEST BIDS SUBMITTED ON AN INDIVIDUAL MACHINE BASIS.

AFTER OPENING OF THE BIDS AS SCHEDULED ON JUNE 3, 1963, IT WAS DETERMINED THAT THE LANGUAGE OF THE INVITATION AS QUOTED ABOVE WAS AMBIGUOUS AND MIGHT WELL HAVE HAD THE EFFECT OF RESTRICTING COMPETITION ON ITEM 4 SINCE THE TERM "ITEM" HAD BEEN VARIOUSLY INTERPRETED BY THE BIDDERS TO MEAN ALL THE MACHINES INCLUDED IN ITEM 4 OR EACH INDIVIDUAL PIECE OF EQUIPMENT WITHIN THAT ITEM. AS A CONSEQUENCE ALL BIDS ON ITEM 4 WERE REJECTED AND THE THREE PRESSES INCLUDED THEREIN WERE OFFERED AT A LATER SALE AND SOLD FOR APPROXIMATELY $6,000 MORE THAN WOULD HAVE BEEN OBTAINED UNDER THE ORIGINAL INVITATION.

YOU CONTEND THAT THE REJECTION OF ALL BIDS UNDER ITEM 4 IS IMPROPER.

THE DISPOSITION OF GOVERNMENT SURPLUS PROPERTY IS GOVERNED BY THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. SECTION 203 (E) (2), AS AMENDED, 40 U.S.C. 484, PROVIDES:

"WHENEVER PUBLIC ADVERTISING FOR BIDS IS REQUIRED UNDER PARAGRAPH (1) OF THIS SUBSECTION---

"/A) THE ADVERTISEMENT FOR BIDS SHALL BE MADE AT SUCH TIME PREVIOUS TO THE DISPOSAL OR CONTRACT, THROUGH SUCH METHODS, AND ON SUCH TERMS AND CONDITIONS AS SHALL PERMIT THAT FULL AND FREE COMPETITION WHICH IS CONSISTENT WITH THE VALUE AND NATURE OF THE PROPERTY INVOLVED;

"/B) ALL BIDS SHALL BE PUBLICLY DISCLOSED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT;

"/C) AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED: PROVIDED, THAT ALL BIDS MAY BE REJECTED WHEN IT IS IN THE PUBLIC INTEREST TO DO SO.'

NOT ONLY DOES THE LAW PROVIDE FOR THE REJECTION OF ALL BIDS WHEN IT IS IN THE PUBLIC'S INTEREST TO DO SO BUT THE INVITATION ITSELF SPECIFICALLY PRESERVES TO THE GOVERNMENT THE RIGHT TO WITHDRAW ANY PROPERTY FROM THE SALE AT ANY TIME PRIOR TO THE ACCEPTANCE OF A BID THEREON. WE CONCLUDE, THEREFORE, THAT THE CONTRACTING OFFICER ACTED WELL WITHIN HIS AUTHORITY IN REJECTING ALL BIDS FOR ITEM 4. IN ADDITION, THE LAW AS QUOTED ABOVE, REQUIRES ADVERTISING ON SUCH TERMS AS TO PERMIT FULL AND FREE COMPETITION. WE ARE IN AGREEMENT WITH THE ADMINISTRATIVE CONCLUSION THAT THE INVITATION WAS AMBIGUOUS WITH RESPECT TO WHETHER IT WAS INTENDED TO SOLICIT A SINGLE BID FOR ALL OF ITEM 4 OR A SEPARATE BID FOR EACH UNIT WITHIN ITEM 4. WHERE THE MATERIAL TERMS OF AN INVITATION ARE REASONABLY SUBJECT TO MORE THAN ONE INTERPRETATION, FULL AND FREE COMPETITION MAY WELL BE LACKING SINCE BIDS MAY NOT HAVE BEEN PREPARED ON THE SAME BASIS. CLEARLY, THIS WAS THE SITUATION WITH RESPECT TO ITEM 4.

IN ACCORDANCE WITH THE FOREGOING WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION.