B-153249, FEB. 17, 1964

B-153249: Feb 17, 1964

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TO UNION STEEL CHEST CORPORATION: WE HAVE RECEIVED YOUR LETTERS OF JANUARY 13. YOU ALLEGE THAT A "DEEPDRAWN" BOX WILL NOT MEET THE REQUIREMENTS OF THE FEDERAL SPECIFICATION. CONCLUDES THAT THE APPLICABLE FEDERAL SPECIFICATION IS AMBIGUOUS AND THAT A BIDDER MIGHT BE LED TO BELIEVE THAT A "DEEPDRAWN" BOX WOULD NOT BE RESPONSIVE THERETO. IT SHOULD BE NOTED THAT WHERE A SPECIFICATION IS IN FACT AMBIGUOUS. A CONTRACTING OFFICER MAY REJECT ALL BIDS EVEN THOUGH THEY HAVE ALREADY BEEN OPENED. WHETHER THE SUBJECT SPECIFICATION IS MERELY AMBIGUOUS. THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. 37 COMP. FEDERAL PROCUREMENT REGULATION 1- 2.404-1 (B) (4) SPECIFICALLY PROVIDES THAT THE INVITATION MAY BE CANCELLED AFTER OPENING OF BIDS WHEN THE "BIDS RECEIVED INDICATE THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ON WHICH THE BIDS WERE INVITED.'.

B-153249, FEB. 17, 1964

TO UNION STEEL CHEST CORPORATION:

WE HAVE RECEIVED YOUR LETTERS OF JANUARY 13, AND 20, 1964, IN WHICH YOU PROTEST THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. FPNTT-E 54681-A, BY GENERAL SERVICES ADMINISTRATION, AFTER BIDS RECEIVED IN RESPONSE THERETO HAD BEEN OPENED.

THE RECORD ESTABLISHES THAT ITEMS 2A AND 14A OF THE IFB (FOR 1964 ANNUAL REQUIREMENTS) COVER ,TYPE I" TOOL BOXES, TO BE CONSTRUCTED IN ACCORDANCE WITH FEDERAL SPECIFICATION GGG-T-558. THE LOW BIDDER ON THESE ITEMS, SIMONSEN METAL PRODUCTS CO., OFFERED "DEEPDRAWN" BOXES, WHILE YOU OFFERED "FABRICATED" BOXES. YOU ALLEGE THAT A "DEEPDRAWN" BOX WILL NOT MEET THE REQUIREMENTS OF THE FEDERAL SPECIFICATION, AND YOU GIVE EXPLICIT REFERENCES TO SUCH SPECIFICATION WHICH ALLEGEDLY PROVE THE DEFICIENCIES OF THE SIMONSEN BOX. THE GENERAL SERVICES ADMINISTRATION REPORT TO THIS OFFICE DOES NOT ATTEMPT TO REFUTE THE PARTICULARS OF YOUR ALLEGATION IN DETAIL, BUT CONCLUDES THAT THE APPLICABLE FEDERAL SPECIFICATION IS AMBIGUOUS AND THAT A BIDDER MIGHT BE LED TO BELIEVE THAT A "DEEPDRAWN" BOX WOULD NOT BE RESPONSIVE THERETO. IN THIS CONNECTION, IT SHOULD BE NOTED THAT WHERE A SPECIFICATION IS IN FACT AMBIGUOUS, A CONTRACTING OFFICER MAY REJECT ALL BIDS EVEN THOUGH THEY HAVE ALREADY BEEN OPENED. SEE B-149018, DATED JULY 18, 1962, CITING SECTION 1-2.404-1 (B) (1) OF THE FEDERAL PROCUREMENT REGULATIONS.

WHETHER THE SUBJECT SPECIFICATION IS MERELY AMBIGUOUS, AS STATED BY THE ADMINISTRATIVE AGENCY, OR AS YOU ALLEGE, SO DRAWN AS TO CLEARLY PRECLUDE THE ACCEPTANCE OF A "DEEPDRAWN" BOX WOULD APPEAR TO BE ACADEMIC, SINCE THE GENERAL SERVICES ADMINISTRATION HAS ALSO REPORTED THAT THE DRAFTERS OF THE SPECIFICATION DID NOT INTEND TO EXCLUDE BIDS OFFERING "DEEPDRAWN" BOXES, AND THAT BOXES CONSTRUCTED IN THIS MANNER WOULD, IN FACT, MEET THE MINIMUM NEEDS OF THE GOVERNMENT.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ONE OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. 37 COMP. GEN. 760, 761. SEE ALSO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 395, 41 U.S.C. 253 (B), AS AMENDED; PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. FURTHERMORE, FEDERAL PROCUREMENT REGULATION 1- 2.404-1 (B) (4) SPECIFICALLY PROVIDES THAT THE INVITATION MAY BE CANCELLED AFTER OPENING OF BIDS WHEN THE "BIDS RECEIVED INDICATE THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ON WHICH THE BIDS WERE INVITED.' THEREFORE, IT SEEMS CLEAR THAT WHEN AN ADMINISTRATIVE AGENCY BEFORE AWARD DETERMINES THAT AN IFB IT HAS ISSUED CONTAINS A SPECIFICATION WHICH EITHER OVERSTATES OR MAY REASONABLY BE CONSTRUED TO OVERSTATE ITS MINIMUM NEEDS, THE BEST INTEREST OF THE GOVERNMENT ORDINARILY REQUIRES THE CANCELLATION OF THAT IFB. SEE B- 137424, DATED DECEMBER 30, 1954; B-119608, DATED MAY 7, 1954.

FROM THE FOREGOING IT APPEARS THAT REJECTION OF ALL BIDS WAS WARRANTED IN THIS CASE, SINCE THE SPECIFICATIONS EITHER STATED THE AGENCY'S REQUIREMENTS AMBIGUOUSLY, OR IF THEY DID NOT, OVERSTATED ITS MINIMUM ACTUAL NEEDS. THEREFORE, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE ADMINISTRATIVE AGENCY.