B-156993, SEP. 8, 1965

B-156993, SEP. 8, 1965

TO ATLANTIC BUILDING CONTRACTORS, INC.:

THIS REFERS TO YOUR LETTER OF JUNE 14, 1965, PROTESTING AGAINST THE AWARD MADE BY THE DEPARTMENT OF THE AIR FORCE UNDER PURCHASE REQUEST REFP 65- 298, AT EGLIN AIR FORCE BASE, FLORIDA, FOR CONSTRUCTION OF CONCRETE FOOTINGS AND ANCHORS FOR TOWERS LOCATED AT CUDJOE KEY, FLORIDA.

BIDS FOR THIS WORK WERE ORIGINALLY SOLICITED UNDER IFB NO. 08-635-65 253, ISSUED APRIL 28, 1965, AND THE FOLLOWING THREE BIDS WERE OPENED ON MAY 14, 1965:

TABLE

ATLANTIC BUILDING CONTRACTORS, INC. $28,988

BENEDICT AND JORDAN, INC. $30,800

GUIN AND HUNT, INC. $37,708

THE AIR FORCE REPORTS THAT IT HAD MISCALCULATED THE COST OF THE WORK AND THAT ONLY $25,000 WAS MADE AVAILABLE FOR THE PROJECT. DUE TO THE URGENCY OF THE REQUIREMENT (TO SUPPORT A VITAL URGENT REQUIREMENT OF THE U.S. AIR FORCE SECURITY SERVICE), AIR FORCE DECIDED TO DELETE A PORTION OF THE WORK IN ORDER TO BRING THE COST BELOW THE FUND LIMIT AND TO RESOLICIT BIDS AS RAPIDLY AS POSSIBLE THROUGH NEGOTIATING PROCEDURES. THE DEPARTMENT FELT THAT IT COULD NOT ALLOW THE TIME NEEDED TO REQUEST ADDITIONAL FUNDS OR TO RESOLICIT BIDS UNDER A REDUCED SCHEDULE OF WORK THROUGH FORMAL ADVERTISING. THE THREE BIDDERS WERE CONTACTED BY TELEPHONE AND ADVISED OF THE INVITATION CANCELLATION, AND THEY WERE INVITED TO SUBMIT QUOTES BY MAY 24, 1965, ON THE REDUCED WORK. IN THIS CONNECTION, YOU ADVISE THAT YOUR FIRM RECEIVED A TELEPHONE CALL ON MAY 20, 1965, FROM THE BUYING OFFICE ADVISING THAT FUNDS WERE NOT AVAILABLE TO DO THE ENTIRE PROJECT AND ASKING WHETHER YOUR FIRM WOULD BE INTERESTED IN NEGOTIATING SAID PROJECT DELETING THE FOUNDATIONS FOR "C" TOWER AND THE "C" TOWER WORK, WHICH REPRESENTED APPROXIMATELY 20 PERCENT OF THE PROJECT.

ON MAY 24, 1965, VERBAL PROPOSALS WERE RECEIVED FROM THE THREE FIRMS AS FOLLOWS:

TABLE

GUIN AND HUNT, INC. $22,616

ATLANTIC BUILDING CONTRACTORS, INC. $22,688

BENEDICT AND JORDAN, INC. $24,500

ON MAY 26, 1965, WRITTEN NOTICE OF THE INVITATION CANCELLATION WAS MAILED, AND ON JUNE 4, 1965, AWARD WAS MADE TO GUIN AND HUNT, INC., ON ITS QUOTE OF $22,616. THE AIR FORCE ADVISES THAT THE CONTRACT HAS BEEN COMPLETED.

YOU CONTEND THAT THE PROCEDURES FOLLOWED BY AIR FORCE IN AWARDING THIS CONTRACT WERE DETRIMENTAL TO COMPETITIVE BIDDING. SPECIFICALLY, YOU PROTEST AGAINST THE AIR FORCE NEGOTIATIONS WITH THE HIGHER BIDDERS. WAS YOUR EXPECTATION THAT ONLY YOUR FIRM WOULD BE CONSIDERED FOR THE NEGOTIATION. ALSO, YOU QUESTION HOW THE HIGH BIDDER WAS ABLE TO REDUCE ITS PRICE BY SO MUCH (FROM $37,708 TO $22,616).

THE ORIGINAL INVITATION CALLED FOR A LUMP-SUM BID. THE AVAILABLE FUNDS WERE INSUFFICIENT TO COVER AN AWARD. SINCE THIS WAS AN URGENT REQUIREMENT, ALL BIDS WERE REJECTED "IN THE BEST INTERESTS OF THE GOVERNMENT," AND PROPOSALS WERE ORALLY SOLICITED. IN THIS CONNECTION, ASPR 3-501 (A) PROVIDES THAT PROPOSALS MAY BE SOLICITAED ORALLY "IN APPROPRIATE CASES.' SEE ALSO ASPR 3-202, PERTAINING TO THE AUTHORITY TO NEGOTIATE WHERE THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

WE FIND NO AUTHORIZATION FOR NEGOTIATING SOLELY WITH THE LOW BIDDER UNDER A DULY CANCELLED INVITATION. RATHER, ASPR 3-102 (C) STATES AS A REQUIREMENT THAT NEGOTIATED PROCUREMENTS BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT. THIS CASE APPEARS TO DEMONSTRATE THE WISDOM OF THAT REQUIREMENT. WE NOTE THAT BOTH YOUR FIRM AND THE NEXT LOW BIDDER OFFERED A $6,300 REDUCTION IN PRICE AS A RESULT OF THE DELETIONS WHEREAS GUIN AND HUNT REDUCED ITS PRICE BY $15,092. AIR FORCE ADVISES THAT WHILE IT IS NOT IN A POSITION TO DETERMINE EXACTLY HOW THE BIDDERS REACHED THESE FIGURES IT SURMISES THAT YOUR FIRM AND THE NEXT LOW BIDDER (BOTH BASED IN MIAMI) HAD MADE MORE ADVANTAGEOUS ARRANGEMENTS FOR THE DELETED PORTION OF THE WORK THAN HAD GUIN AND HUNT (OF PENSACOLA, FLORIDA). IN ANY EVENT, WE DO NOT FIND ANY IMPROPRIETY IN THE AWARD PROCEDURE FOLLOWED BY THE AIR FORCE. ACCORDINGLY, YOUR PROTEST IS DENIED.