B-153119, APR. 1, 1964

B-153119: Apr 1, 1964

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THIS LETTER IS BEING ADDRESSED TO YOU AS ATTORNEYS FOR THE PROTESTANT. BIDS WERE OPENED ON SEPTEMBER 17. XII OF THE INVITATION WERE AWARDED TO NEW YORK PACKAGING ON NOVEMBER 27. SCHEDULE IV WAS ALSO AWARDED TO NEW YORK PACKAGING AS THE LOWEST BIDDER. THE THREE ITEMS IN THIS SCHEDULE WERE REFERENCED TO THE BRAND NAME OF THE PRODUCTS OF TWO MANUFACTURERS BY TRADE NAME AND SIZE. IT WAS DETERMINED THAT THE DIMENSIONS SPECIFIED FOR ITEM 1 OF SCHEDULE X WERE AMBIGUOUS. NO AWARD WAS MADE FOR SCHEDULE X AND THE REQUIREMENT WAS READVERTISED UNDER INVITATION NO. 52119 WHICH CONTAINED A REVISED PURCHASE DESCRIPTION CONFORMING TO THE GOVERNMENT'S NEEDS. WE ARE ADVISED THAT GSA IS PROCEEDING TO MAKE AN AWARD UNDER THIS INVITATION TO THE LOWEST RESPONSIVE BIDDER AND THAT NEW YORK PACKAGING IS NOT THE LOW BIDDER.

B-153119, APR. 1, 1964

TO REICH, COHEN AND ZIMMETH:

BY TELEGRAM DATED DECEMBER 20, 1963, THE NEW YORK PACKAGING CORPORATION, PROTESTED AGAINST THE AWARD OF A CONTRACT BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 50950 AND THE REISSUANCE OF SCHEDULE X THEREOF UNDER INVITATION FOR BIDS NO. 52119. THIS LETTER IS BEING ADDRESSED TO YOU AS ATTORNEYS FOR THE PROTESTANT.

INVITATION NO. 50950, DATED AUGUST 29, 1963, REQUESTED BIDS FOR AN INDEFINITE QUANTITY OF POLYETHYLENE PLASTIC BAGS TO COVER THE ANNUAL REQUIREMENTS OF GENERAL SERVICES ADMINISTRATION STORES DEPOT, DENVER, COLORADO. BIDS WERE OPENED ON SEPTEMBER 17, 1963, AND SUBSEQUENT TO BID EVALUATION, SCHEDULES II, III, V, VI, VIII, AND XII OF THE INVITATION WERE AWARDED TO NEW YORK PACKAGING ON NOVEMBER 27, 1963. THEREAFTER, ON DECEMBER 31, 1963, SCHEDULE IV WAS ALSO AWARDED TO NEW YORK PACKAGING AS THE LOWEST BIDDER.

SCHEDULE X OF THIS INVITATION PROVIDED FOR THE FURNISHING OF THREE ITEMS OF POLYETHYLENE PLASTIC BAGS ON A BRAND NAME OR EQUAL BASIS AND FOR AN AWARD IN THE AGGREGATE. THE THREE ITEMS IN THIS SCHEDULE WERE REFERENCED TO THE BRAND NAME OF THE PRODUCTS OF TWO MANUFACTURERS BY TRADE NAME AND SIZE. HOWEVER, BASED ON ADVICE FROM THE TWO MANUFACTURERS OF THE BRAND NAMED ITEMS, IT WAS DETERMINED THAT THE DIMENSIONS SPECIFIED FOR ITEM 1 OF SCHEDULE X WERE AMBIGUOUS, INCOMPLETE AND IN CONFLICT WITH THE LITERATURE OF THE BRAND NAME REFERENCED PRODUCT. ALSO, IT APPEARED THAT ONE OF THE BRAND-NAMED REFERENCED PRODUCTS CONTAINED SYNTHETIC RUBBER IN ADDITION TO HIGH DENSITY POLYETHYLENE. IN VIEW THEREOF, NO AWARD WAS MADE FOR SCHEDULE X AND THE REQUIREMENT WAS READVERTISED UNDER INVITATION NO. 52119 WHICH CONTAINED A REVISED PURCHASE DESCRIPTION CONFORMING TO THE GOVERNMENT'S NEEDS. WE ARE ADVISED THAT GSA IS PROCEEDING TO MAKE AN AWARD UNDER THIS INVITATION TO THE LOWEST RESPONSIVE BIDDER AND THAT NEW YORK PACKAGING IS NOT THE LOW BIDDER.

ARTICLE 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL BIDS. ADDITION, ALL BIDS MAY BE REJECTED PURSUANT TO THE AUTHORITY OF 41 U.S.C. 253 (B) 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 SUPPLIES 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 GENERAL SERVICES ADMINISTRATION.