B-155583, FEB. 12, 1965

B-155583, FEB. 12, 1965

TO SICILIANO AND DALY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1964, WITH ENCLOSURE, PROTESTING ON BEHALF OF APPROVED MAINTENANCE SERVICE, INC., THE ACTION BY GENERAL SERVICES ADMINISTRATION (GSA) IN FAILING TO MAKE AN AWARD TO IT UNDER INVITATION FOR BIDS NO. WA-NF-R-1503-7-31-64.

INVITATION FOR BIDS WA-NF-R-1503-7-31-64 WAS ISSUED JULY 16, 1964, FOR THE FURNISHING OF CONTRACTUAL SERVICES INCIDENT TO RECEIVING, HANDLING, AND SHIPPING WAREHOUSE ITEMS, CLEANING OR SERVICING BUILDING, MOVING, AND MOVEMENT OR DISPOSAL OF RECORDS, FOR THE PERIOD SEPTEMBER 1, 1964, OR DATE OF AWARD IF LATER, THROUGH AUGUST 31, 1965. BIDS WERE INVITED FOR SERVICE TO BE PERFORMED IN THE METROPOLITAN AREAS OF WASHINGTON, D.C., BALTIMORE, MARYLAND, NORFOLK AND ROANOKE, VIRGINIA, AND CHARLESTON, CLARKSBURG, HUNTINGTON, MARTINSBURG AND PARKERSBURG, WEST VIRGINIA. EIGHT BIDS WERE RECEIVED IN THE WASHINGTON, D.C., AREA, EIGHT FOR THE WORK IN THE BALTIMORE AREA, SEVEN BIDS FOR WORK IN THE NORFOLK AREA, AND THREE TO FIVE BIDS WERE RECEIVED FROM DIFFERENT CONTRACTORS FOR WORK IN THE OTHER VIRGINIA AND WEST VIRGINIA LOCATIONS. AFTER BID EVALUATION, AWARDS FOR THE WORK IN ALL AREAS OTHER THAN WASHINGTON AND BALTIMORE WERE MADE ON AUGUST 25, 1964, TO SIX COMPANIES WHO WERE LOW BIDDERS FOR THE APPROPRIATE PORTION OF THE INVITATION.

IT IS REPORTED THAT APPROVED MAINTENANCE SERVICE, INC., WAS LOW BIDDER FOR BOTH THE WASHINGTON AND BALTIMORE AREAS. HOWEVER, TWO CIRCUMSTANCES CAUSED THE GENERAL SERVICES ADMINISTRATION TO WITHHOLD AWARD FOR THOSE AREAS. ONE WAS THE POSSIBILITY OF SERIOUS LABOR PROBLEMS IF AWARDS WERE MADE FOR THOSE AREAS. THE OTHER WAS THE REALIZATION, FOLLOWING CONFERENCES BY THE COMMISSIONER OF THE FEDERAL SUPPLY SERVICE WITH REGIONAL OFFICIALS THROUGHOUT THE COUNTRY, THAT GSA SERVICE CONTRACTS WERE NOT SUFFICIENTLY DETAILED IN THE DESCRIPTION OF WORK TO ASSURE THE GOVERNMENT THAT IT WOULD RECEIVE THE REQUIRED HIGH QUALITY OF SERVICES.

THE RECORD SHOWS THAT DURING THE SUMMER OF 1964 REPRESENTATIVES OF THE BUILDING SERVICES EMPLOYEES INTERNATIONAL UNION AND OF THE WAREHOUSE EMPLOYEES UNION LOCAL 730 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS ACTIVELY SOUGHT TO ORGANIZE EMPLOYEES OF THE THEN GSA CONTRACTOR FOR SERVICES IN THE WASHINGTON AND BALTIMORE AREAS, AND IN LATE JULY THOSE UNIONS WERE JOINTLY CERTIFIED BY THE NATIONAL LABOR RELATIONS BOARD AS THE REPRESENTATIVES OF THE EMPLOYEES. DESPITE THIS FACT REPRESENTATIVES OF THE UNIONS IN QUESTION HAD BEEN UNABLE TO BARGAIN WITH THE THEN CONTRACTOR AND TOLD OFFICIALS OF GSA THAT THEY WERE PREPARED TO USE ALL LEGAL RESOURCES AT THEIR DISPOSAL TO OBTAIN UNION RECOGNITION AND ARRIVE AT A LABOR CONTRACT. FURTHER, DURING THE EARLY FALL SEASON OF 1964, THE PUBLIC BUILDING SERVICE REVISED DOWNWARD THE NUMBER OF BUILDING-MAINTENANCE LABORERS IT WOULD CALL FOR UNDER THE CONTRACT FOR WHICH THE FIRST INVITATION HAD BEEN ISSUED, HAVING DETERMINED THAT IT WOULD HAVE A FAR SMALLER REQUIREMENT FOR SUCH LABORERS THAN ORIGINALLY ESTIMATED.

IT WAS IN THE LIGHT OF THESE CIRCUMSTANCES THAT IT WAS DETERMINED NOT TO MAKE THE AWARD UNDER THE INVITATION WITH RESPECT TO THE WASHINGTON AND BALTIMORE AREAS, BUT INSTEAD TO ISSUE A NEW AND REVISED INVITATION WHICH WOULD MAKE MORE SPECIFIC THE REQUIREMENTS FOR AND QUALITY OF SERVICES REQUIRED TO BE PERFORMED UNDER THE CONTRACT AND WHICH WOULD REQUIRE A SUCCESSFUL BIDDER TO SUBMIT A PERFORMANCE BOND IF AWARDED THE CONTRACT. AS A CONSEQUENCE, INVITATION FOR BIDS WA-NF RR-1503-11-13-64 WAS ISSUED ON OCTOBER 22, 1964, FOR OPENING ON NOVEMBER 13, 1964, COVERING THE FURNISHING OF CONTRACTUAL SERVICES OF THE SORT COVERED IN THE EARLIER INVITATION BUT LIMITED TO THE METROPOLITAN AREAS OF WASHINGTON, D.C., AND BALTIMORE, MARYLAND. THIS LATER INVITATION DIFFERS IN THREE MATERIAL RESPECTS FROM THE EARLIER INVITATION. FIRST, PARAGRAPH 5 (G) OF THE SPECIAL CONDITIONS REQUIRES A SUCCESSFUL BIDDER TO EXECUTE A PERFORMANCE BOND IN THE AMOUNT OF $20,000 TO GUARANTEE PERFORMANCE OF THE RESULTANT CONTRACTS. SECOND, THE WORK REQUIREMENTS SET FORTH IN PARAGRAPH 5 (T) OF THE SPECIAL CONDITIONS ARE FAR MORE EXPLICIT THAN THOSE CONTAINED IN THE EARLIER INVITATION. FINALLY, THE ESTIMATED REQUIREMENTS FOR LABORERS IN THE LATER INVITATION WERE SUBSTANTIALLY REDUCED FROM THE ESTIMATES IN THE EARLIER INVITATION, IN LIGHT OF CHANGED ESTIMATES OF NEED, PARTICULARLY FOR EMPLOYEES IN THE BUILDING MAINTENANCE FIELD.

SIX BIDS WERE RECEIVED FOR PERFORMANCE OF SERVICES IN THE WASHINGTON AREA AND SIX WERE RECEIVED FOR SERVICES IN THE BALTIMORE AREA. APPROVED MAINTENANCE SERVICE, INC., WAS AGAIN THE LOW BIDDER FOR BOTH AREAS AND A CONTRACT WAS AWARDED TO THAT COMPANY ON NOVEMBER 25, 1964.

YOUR PROTEST IS BASED, IN EFFECT, UPON THE PREMISES THAT YOUR CLIENT DID HIGH QUALITY WORK; THAT THERE WAS NO POTENTIAL LABOR PROBLEM; THAT ONCE AN INVITATION TO BID HAS BEEN ISSUED UPON WHICH BIDS HAVE BEEN ACCEPTED IT CANNOT BE CANCELED IN PART; AND THAT SUCH ACTION BY GSA WAS UNREASONABLE, ARBITRARY AND CAPRICIOUS.

PARAGRAPH 3, PAGE 4, OF THE INVITATION FOR BIDS PROVIDES THAT AWARD WILL BE MADE IN THE AGGREGATE BY CITY OR LOCATION (EACH METROPOLITAN AREA) FOR THE FURNISHING OF BOTH LABORERS AND FORKLIFT OPERATORS. PARAGRAPH 8 (B), PAGE 2, OF THE INVITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED. IN ADDITION, IT IS PROVIDED BY STATUTE, 41 U.S.C. 253 (B), THAT ALL BIDS MAY BE REJECTED WHENEVER IT IS DETERMINED THAT SUCH ACTION IS IN THE PUBLIC INTEREST. FURTHER, IT CONSISTENTLY HAS BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT AN OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED INCLUDING THE LOWEST RESPONSIVE BID. BRIEN V. CARNEY, 6 F.SUPP. 761; COLORADO PAVING COMPANY V. MURPHY, 78 F. 28. ALSO, IT HAS BEEN 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 THE BEST INTERESTS OF THE GOVERNMENT WE PERCEIVE NO OBJECTION TO SUCH ACTION. 17 COMP. GEN. 554.

CONTRACTS WERE NOT LET FOR THE WASHINGTON, D.C., AND BALTIMORE, MARYLAND, AREAS UNDER THE ORIGINAL INVITATION BECAUSE AFTER ISSUANCE BUT BEFORE AWARD OF CONTRACTS FOR THOSE AREAS, THE GOVERNMENT'S EXPERIENCE INDICATED THAT A MORE EXPLICIT STATEMENT OF WORK WAS REQUIRED FOR THE ADEQUATE PROTECTION OF THE GOVERNMENT. IT IS WELL SETTLED THAT ADVERTISING STATUTES WERE ENACTED FOR THE PROTECTION OF THE INTERESTS OF THE UNITED STATES AND NOT FOR THE BENEFIT OR PROTECTION OF BIDDERS. PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, 126; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75, 78. WE HAVE, NEVERTHELESS, CONSTANTLY SOUGHT TO PROTECT AND MAINTAIN THE PRINCIPLES OF IMPARTIALITY AND FAIR PLAY UPON WHICH THE COMPETITIVE BIDDING SYSTEM DEPENDS AND HAVE NEVER COUNTENANCED THE REJECTION OF BIDS MERELY FOR THE PURPOSE OF AFFORDING THE BIDDERS AN OPPORTUNITY TO BETTER THE PRICES OF THEIR COMPETITORS. WE CANNOT, HOWEVER, CONSIDER THE MATTER OF COMPETITIVE BIDDING FOR GOVERNMENT CONTRACTS SOLELY AS A GAME, IN WHICH THE CONTRACT MUST AUTOMATICALLY GO TO THE LOWEST BIDDER OR TO OTHER ATTEMPTED BIDS WHICH CANNOT FOR TECHNICAL AND PRACTICAL REASONS BE ACCEPTED. FACED WITH THE POSSIBILITY OF LABOR PROBLEMS AND THE CONSEQUENT POSSIBILITY OF WORK STOPPAGES, THE GOVERNMENT DETERMINED THAT THE REQUIREMENT IN THE INVITATION FOR A PERFORMANCE BOND COUPLED WITH THE MODIFIED STATEMENT OF WORK REQUIRED WAS NECESSARY IN THE INTERESTS OF OBTAINING SATISFACTORY PERFORMANCE OF A RESULTING CONTRACT. FINALLY, THE GOVERNMENT'S ESTIMATED REQUIREMENTS HAD CHANGED MARKEDLY AND THIS FACT WAS ALSO REFLECTED IN THE NEW INVITATION. WHEN IN THE LIGHT OF ALL THE ABOVE FACTS IT WAS ADMINISTRATIVELY DETERMINED THAT THE INTERESTS OF THE GOVERNMENT REQUIRED THE ISSUANCE OF A NEW INVITATION COVERING THIS PORTION OF THE AWARD, IT IS OUR VIEW THAT SUCH ACTION WAS WITHIN THE AMBIT OF ITS DISCRETION AND WE SEE NO LEGAL OBJECTION TO THE ACTION TAKEN.

IN THE INSTANT CASE ALL BIDDERS UNDER THE ORIGINAL INVITATION FOR THOSE AREAS HAD AN EQUAL OPPORTUNITY TO BE APPRISED OF THE BIDS SUBMITTED BY THEIR COMPETITORS AND ALL THE BIDDERS UNDER THE READVERTISED INVITATION HAD EQUAL AND UNRESTRICTED OPPORTUNITY TO SUBMIT COMPETITIVE PROPOSALS WITHOUT REGARD TO THE ORIGINAL BID PRICES. THEREFORE, NO HARM TO THE COMPETITIVE BIDDING SYSTEM IS SEEN IN THE CIRCUMSTANCES. SINCE THE AWARD UNDER THE ORIGINAL INVITATION WAS WITHHELD IN THE BEST INTEREST OF THE GOVERNMENT THERE IS NO LEGAL BASIS ON WHICH THIS OFFICE MAY QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.