B-153173, FEB. 27, 1964

B-153173: Feb 27, 1964

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GENERAL SERVICES ADMINISTRATION: THIS IS IN REPLY TO YOUR LETTER DATED DECEMBER 18. TIME IS OF THE ESSENCE TO A WOULD-BE APPELLANT BECAUSE OF THE REQUIREMENT THAT APPEALS BE LODGED WITHIN 30 DAYS OF THE DATE OF RECEIPT BY THE CONTRACTOR OF A FINAL DECISION. WE BELIEVE THAT MAKING MANDATORY THE INCLUSION OF UNEQUIVOCAL PROVISIONS DESIGNED TO PRECLUDE CONFUSION AS TO THE INTENT OF THE PARTIES WILL SERVE TO MINIMIZE JURISDICTIONAL CONTROVERSIES AND TO DELINEATE CLEARLY WHAT CONSTITUTES A FINAL DECISION UNDER THE DISPUTES CLAUSE. (CONTRACTOR CLAUSE IS NOT MANDATORY.). THE RULE THAT MULTIPLE BIDS BY THE SAME OR AFFILIATED BIDDERS ARE ACCEPTABLE WHEN ACCEPTANCE WILL NOT PREJUDICE THE INTERESTS OF EITHER THE GOVERNMENT OR OF OTHER BIDDERS IS EXEMPLIFIED BY THE HOLDING THAT MULTIPLE BIDS ARE NOT PERMISSIBLE IN ANY OF THE FOLLOWING SITUATIONS: WHERE PROHIBITED BY A PROVISION IN THE INVITATION FOR BIDS.

B-153173, FEB. 27, 1964

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

THIS IS IN REPLY TO YOUR LETTER DATED DECEMBER 18, 1963, TRANSMITTING FOR OUR REVIEW COPIES OF PROPOSED FEDERAL PROCUREMENT REGULATIONS ON THE FOLLOWING SUBJECTS: CONTRACTING OFFICERS DECISIONS UNDER THE DISPUTES CLAUSE; MULTIPLE BIDDING; EQUAL LOW BIDS; AND INFORMATION TO BIDDERS. SHALL DISCUSS THESE REGULATIONS SERIATIM.

SECTION 1-1.318 SETS FORTH A STANDARD PARAGRAPH FOR INCLUSION IN FINAL DECISIONS OF CONTRACTING OFFICERS RENDERED PURSUANT TO THE DISPUTES CLAUSE AND ANOTHER STANDARD PARAGRAPH SUGGESTED FOR USE BY CONTRACTORS IN THE PERFECTION OF APPEALS THEREFROM. OUR OFFICE RECOGNIZES THE DESIRABILITY OF A REGULATION ON THE SUBJECT IN VIEW OF THE PROBLEM FREQUENTLY ENCOUNTERED BY GOVERNMENT OFFICIALS RESPONSIBLE FOR RESOLVING DISPUTES UNDER GOVERNMENT CONTRACT, VIZ., THE PROBLEM OF AMBIGUOUS AND UNINFORMATIVE FINAL DECISIONS AND APPEALS. FROM A JURISDICTIONAL POINT OF VIEW, TIME IS OF THE ESSENCE TO A WOULD-BE APPELLANT BECAUSE OF THE REQUIREMENT THAT APPEALS BE LODGED WITHIN 30 DAYS OF THE DATE OF RECEIPT BY THE CONTRACTOR OF A FINAL DECISION. WE BELIEVE THAT MAKING MANDATORY THE INCLUSION OF UNEQUIVOCAL PROVISIONS DESIGNED TO PRECLUDE CONFUSION AS TO THE INTENT OF THE PARTIES WILL SERVE TO MINIMIZE JURISDICTIONAL CONTROVERSIES AND TO DELINEATE CLEARLY WHAT CONSTITUTES A FINAL DECISION UNDER THE DISPUTES CLAUSE. (CONTRACTOR CLAUSE IS NOT MANDATORY.)

PROPOSED NEW SECTION 1-2.404-6 PERTAINING TO THE LEGALITY OF THE SUBMISSION OF TWO OR MORE BIDS ON THE SAME ITEM IN AN INVITATION BY THE SAME BIDDER OR RELATED BIDDERS APPEARS TO BE AN ADEQUATE RESTATEMENT OF THE RULE LAID DOWN IN 39 COMP. GEN. 892. THE RULE THAT MULTIPLE BIDS BY THE SAME OR AFFILIATED BIDDERS ARE ACCEPTABLE WHEN ACCEPTANCE WILL NOT PREJUDICE THE INTERESTS OF EITHER THE GOVERNMENT OR OF OTHER BIDDERS IS EXEMPLIFIED BY THE HOLDING THAT MULTIPLE BIDS ARE NOT PERMISSIBLE IN ANY OF THE FOLLOWING SITUATIONS: WHERE PROHIBITED BY A PROVISION IN THE INVITATION FOR BIDS; WHERE MULTIPLE BIDDING IS ENGAGED IN FOR THE PURPOSE OF CIRCUMVENTING THE REQUIREMENTS OF A STATUTE; WHERE AN UNFAIR ADVANTAGE MIGHT BE GAINED IN CASES OF AN AWARD BY MEANS OF THE DRAWING OF LOTS; OR WHERE MULTIPLE BIDDING IS ENGAGED IN WITHOUT A LEGITIMATE BUSINESS REASON. B-148185 DATED APRIL 12, 1962; B-151459 DATED JULY 8, 1963. CONSIDERATION MIGHT BE GIVEN TO THE USE OF EXAMPLES IN THE REGULATION TO ASSIST CONTRACTING OFFICERS IN ITS IMPLEMENTATION.

THE PROPOSED REVISION TO SECTION 1-2.407-6 ON THE PROCEDURE TO BE FOLLOWED BY CONTRACTING OFFICERS IN CASE OF THE SUBMISSION OF EQUAL LOW BIDS IS IN ACCORD WITH THE POLICY THAT WHERE AWARD IS TO BE MADE BY THE DRAWING OF LOTS, MULTIPLE BIDDERS SHALL HAVE ONLY ONE CHANCE TO SUCCEED. THIS ACCORDS WITH THE PRINCIPLE STATED IN THE PRECEDING PARAGRAPH.

WE ARE IN AGREEMENT WITH THE GENERAL OBJECTIVES OF THE REVISION OF SECTION 1-2.408 ON DISCLOSURE OF INFORMATION TO UNSUCCESSFUL BIDDERS. THE REVISION WOULD, FOR THE FIRST TIME, MAKE CONTRACTING OFFICERS RESPONSIBLE FOR NOTIFYING UNSUCCESSFUL LOWER BIDDERS PROMPTLY OF THE FACT THAT THEIR BIDS WERE REJECTED AND THE REASONS FOR REJECTION. THE NEW RULE REPRESENTS A DISTINCT IMPROVEMENT OVER THE SUPERSEDED RULE WHICH LEFT SUCH NOTIFICATION TO THE CONTRACTING OFFICER'S DISCRETION.

IF WE CAN BE OF ANY FURTHER ASSISTANCE ON THESE MATTERS PLEASE CALL UPON US. ..END :