B-153442, APR. 21, 1964

B-153442: Apr 21, 1964

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TO MID-STATES ORNAMENTAL IRON COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 5. INVITATION FOR BIDS NO. 600-50-64'S WAS ISSUED ON OCTOBER 17. THE TOTAL PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS. ALL FIRMS KNOWN TO HAVE RECEIVED COPIES OF THE INVITATION WERE ADVISED BY TELEGRAM THAT THE QUANTITY REQUIRED WAS INCREASED FROM 50 TO 204 AND THAT THE BID OPENING DATE WAS EXTENDED TO DECEMBER 6. THE CONFORMING FORMAL MODIFICATION TO THE INVITATION WAS ISSUED AS AMENDMENT NO. 1 ON NOVEMBER 22. BIDS WERE RECEIVED FROM FIVE SMALL BUSINESS FIRMS AS FOLLOWS: CHART COMPANY QTY. COPIES OF THE AMENDMENT WERE NOT SENT TO THESE TWO FIRMS SINCE THEY WERE NOT ON THE LIST OF FIRMS WHICH HAD BEEN SENT THE BASIC INVITATION.

B-153442, APR. 21, 1964

TO MID-STATES ORNAMENTAL IRON COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 5, AND 21, AND MARCH 31, 1964, PROTESTING AGAINST THE CANCELLATION BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., OF INVITATION FOR BIDS NO. 600-50-64-S, AS AMENDED BY AMENDMENT NO. 1, DATED NOVEMBER 22, 1963, FOR FURNISHING 204 PALLETS WITH COVER ASSEMBLY. YOU ALSO PROTEST THE READVERTISEMENT OF THE REQUIREMENTS FOR THESE PALLETS UNDER A NEW INVITATION FOR BIDS NO. 600-492-64-S.

INVITATION FOR BIDS NO. 600-50-64'S WAS ISSUED ON OCTOBER 17, 1963, WITH AN OPENING DATE OF NOVEMBER 22, 1963. IT CALLED FOR BIDS ON 50 PALLETS WITH COVER ASSEMBLY, BUREAU OF SHIPS PART NO. 1289930, FOR PROJECTED LINE CHANGES XM58 AND XM68. THE TOTAL PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS. AFTER ISSUANCE OF THE INVITATION AN URGENT NEED AROSE FOR AN ADDITIONAL QUANTITY OF THE PALLETS AND ON NOVEMBER 20, 1963, TWO DAYS BEFORE THE OPENING DATE, ALL FIRMS KNOWN TO HAVE RECEIVED COPIES OF THE INVITATION WERE ADVISED BY TELEGRAM THAT THE QUANTITY REQUIRED WAS INCREASED FROM 50 TO 204 AND THAT THE BID OPENING DATE WAS EXTENDED TO DECEMBER 6, 1963. THE CONFORMING FORMAL MODIFICATION TO THE INVITATION WAS ISSUED AS AMENDMENT NO. 1 ON NOVEMBER 22, 1963. BIDS WERE RECEIVED FROM FIVE SMALL BUSINESS FIRMS AS FOLLOWS:

CHART COMPANY QTY. CITY UNIT PRICE EXTENDED PRICE DISCOUNT BLAINE TOOL CORPORATION 50 $448.88 $ 22,440.00 MID STATES ORNAMENTAL 204 560.00 114,240.00 1/4 PERCENT

10 DAYS

IRON COMPANY 50 649.00 32,450.00 1/4 PERCENT

10 DAYS FAB-WELD CORPORATION 204

666.00 135,864.00 1/2 PERCENT

10 DAYS GENERAL DEVELOPMENT 204

837.00 170,748.00 1/2 PERCENT

CORPORATION 10 DAYS

50915.00 45,750.00 1/2 PERCENT

10 DAYS MODERN METAL

MANUFACTURING 50 924.00 46,240.00 1 PERCENT

30 DAYS

NEITHER THE LOW BIDDER, BLAINE TOOL CORPORATION, NOR THE HIGH BIDDER, MODERN METAL MANUFACTURING COMPANY, INC., RETURNED AMENDMENT NO. 1, NOR COULD THEY SINCE THEY HAD NOT BEEN FURNISHED COPIES OF AMENDMENT NO. 1. COPIES OF THE AMENDMENT WERE NOT SENT TO THESE TWO FIRMS SINCE THEY WERE NOT ON THE LIST OF FIRMS WHICH HAD BEEN SENT THE BASIC INVITATION. HOWEVER, THE NAVY WAS CHARGEABLE WITH KNOWLEDGE THAT BOTH OF THESE FIRMS HAD SUBMITTED BIDS ON THE BASIC INVITATION BECAUSE THEIR BIDS WERE IN THE BID BOX ON NOVEMBER 21, 1963, PRIOR TO THE MAILING OF AMENDMENT NO. 1. TWO OTHER BIDDERS, YOU AND GENERAL DEVELOPMENT CORPORATION, ALSO SUBMITTED BIDS DATED NOVEMBER 20, 1963, PRIOR TO THE ISSUANCE OF THE AMENDMENT. YOUR UNIT PRICE FOR A QUANTITY OF 50 WAS $649, BUT WAS REDUCED TO $560 BASED ON FURNISHING A QUANTITY OF 204. FAB-WELD CORPORATION DID NOT SUBMIT A BID ON THE INITIAL QUANTITY BUT ONLY ON THE INCREASED QUANTITY.

ARMED SERVICES PROCUREMENT REGULATION 2-207 IN EFFECT AT THE TIME HERE INVOLVED PROVIDES AS FOLLOWS:

"/A) IF AFTER ISSUANCE OF AN INVITATION FOR BIDS BUT BEFORE THE TIME FOR BID OPENING IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITY, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS, USING DD FORM 1260 (SEE 16-101).

"/B) BEFORE ISSUING AN AMENDMENT TO AN INVITATION FOR BIDS, THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENDING THIS PERIOD BY POSTPONING THE TIME SET FOR OPENING MUST BE CONSIDERED. WHERE ONLY A SHORT TIME REMAINS BEFORE THE TIME SET FOR BID OPENING, CONSIDERATION SHOULD BE GIVEN TO NOTIFYING BIDDERS OF AN EXTENSION OF TIME BY TELEGRAM OR TELEPHONE. SUCH NOTIFICATION SHOULD BE CONFIRMED IN THE AMENDMENT.

"/C) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS.'

ALL PROSPECTIVE BIDDERS WERE NOT ISSUED AN AMENDMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-QUOTED CLAUSE. WHILE AMENDMENT NO. 1, INCREASING THE QUANTITY OF THE PROCUREMENT TO 204, WAS PUBLICIZED IN COMMERCE BUSINESS DAILY NO. 3436, DATED NOVEMBER 27, 1963, FIVE DAYS AFTER THE SPECIFIED OPENING DATE IN THE BASIC INVITATION, SUCH PUBLICATION DID NOT CONSTITUTE THE ISSUANCE OF AN AMENDMENT IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2-207. FOR THAT REASON IT WAS DETERMINED THAT CANCELLATION WAS IN THE BEST INTEREST OF THE GOVERNMENT AND BIDDERS WERE SO ADVISED BY LETTER DATED JANUARY 6, 1964. UNDER ASPR 2-404.1 (B) (VIII) SUCH ACTION WAS A MATTER OF JUDGMENT BY THE CONTRACTING OFFICER.

THE REQUIREMENTS WERE AGAIN REVISED AND INVITATION FOR BIDS 600-492 64'S WAS ISSUED ON JANUARY 30, 1964, FOR A QUANTITY OF 189 PALLETS WITH COVER ASSEMBLY, BUREAU OF SHIPS PART NO. 1289930 FOR PROJECTED LINE CHANGES XM58 AND XM68 WITH OPENING DATE OF FEBRUARY 18, 1964. THIS TOTAL PROCUREMENT WAS ALSO RESTRICTED TO SMALL BUSINESS CONCERNS. NINE BIDS WERE RECEIVED IN RESPONSE TO THIS INVITATION AS FOLLOWS:

CHART

COMPANY UNIT PRICE EXTENDED PRICE DISCOUNT BLAINE TOOL CORPORATION $518.88 $ 98,068.32 1/2 PERCENT 20 DAYS FAB-WELD CORPORATION 559.01 105,652.89 1/2 PERCENT 10 DAYS MID-STATES ORNAMENTAL

IRON COMPANY 598.00 113,002.00 1/2 PERCENT 10 DAYS MISSILE COMPONENTS CORP. 653.76 123,560.64 1 PERCENT 10 DAYS RANDALL MFG. COMPANY, INC. 792.00 149,688.00 1/10 PERCENT 10 DAYS ALLO PRECISION METALS

ENGRG., INC. 797.97 150,816.33 1/2 PERCENT 20 DAYS GENERAL DEVELOPMENT CORP. 815.00 154,035.00 1/2 PERCENT 20 DAYS DEVAL CORPORATION 825.39 155,998.71 1/2 PERCENT 10 DAYS MODERN METAL MFG. CO.,

INC. 827.47 156,391.23 1 PERCENT 30 DAYS

THE INCREASED QUANTITY OVER THE REQUIREMENTS OF THE ORIGINAL INVITATION FOR BIDS FOR A QUANTITY OF 50 APPARENTLY GENERATED MORE INTEREST AS IS EVIDENCED BY THE INCREASE IN THE NUMBER OF BIDS RECEIVED. BOTH BLAINE TOOL CORPORATION AND MODERN METALS MANUFACTURING COMPANY, INC., THE TWO BIDDERS WHO FAILED TO SUBMIT THE AMENDMENT ON THE ORIGINAL BID, SUBMITTED BIDS ON THIS INVITATION WHICH INDICATES THEY WERE INTERESTED IN THE LARGER QUANTITY AS WELL AS THE QUANTITY OF50.

WHILE YOU CONTEND THAT BLAINE TOOL CORPORATION SHOULD HAVE BEEN AWARE OF AMENDMENT NO. 1, IN THE SAME MANNER AS IT WAS AWARE OF THE ORIGINAL INVITATION INASMUCH AS THE AMENDMENT WAS PUBLICIZED AND, THEREFORE, THAT THE BLAINE BID WAS NOT RESPONSIVE, THE FACT IS THAT THE BLAINE COMPANY WAS NOT PROPERLY NOTIFIED OF THE AMENDMENT AS REQUIRED BY THE ASPR PROVISIONS QUOTED ABOVE. ALSO, WHILE YOU RELY ON DECISIONS OF THIS OFFICE, 40 COMP. GEN. 126; B-147682, DECEMBER 21, 1961 (41 COMP. GEN. 419); AND B-128645, SEPTEMBER 28, 1956, TO SUPPORT YOUR VIEW THAT AWARD SHOULD NOT BE MADE TO BLAINE, THOSE DECISIONS DO NOT HOLD THAT THE CONTRACTING AGENCY DID NOT HAVE THE RIGHT TO CANCEL BIDS AND READVERTISE UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED. UNDER THE CONTROLLING REGULATIONS SUCH RIGHT EXISTED IN THE PRESENT CASE EVEN THOUGH, AS CONTENDED BY YOU, THIS RESULTED IN THE HIGHER UNIT BID PRICES. THE FACT IS, NEVERTHELESS, THAT AWARD COULD NOT HAVE BEEN MADE UNDER THE FIRST INVITATION AT A LOWER PRICE, SINCE THE ONLY LOWER BID WAS ON ONLY 50 UNITS WHEREAS THE INVITATION AS AMENDED WAS FOR 204. WHILE IT WAS UNFORTUNATE THAT THE BIDS WERE OPENED AND EXPOSED BEFORE CANCELLATION, WE CANNOT SAY THAT THE ACTION OF THE PROCURING AGENCY, WHETHER OR NOT IT WAS REQUIRED, WAS AN UNJUSTIFIED EXERCISE OF ITS DISCRETION IN THE PREMISES.