B-157928, JAN. 27, 1966

B-157928: Jan 27, 1966

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YOU CONTEND THAT THE AWARD MADE VIOLATED THE FEDERAL PROCUREMENT REGULATIONS IN THAT THE AWARD HAD BEEN MADE AS A RESULT OF AN UNADVERTISED BID AND THAT THE REJECTION OF YOUR BID WHICH WAS OTHERWISE LOW WAS IMPROPER UNDER THE CIRCUMSTANCES. THE SOLE MATTER FOR CONSIDERATION HERE IS WHETHER THE REJECTION OF YOUR BID SUBMITTED ON OCTOBER 19. WAS PROPER. IT IS TO BE NOTED PARTICULARLY THAT ALL BIDDERS WERE INFORMED THAT NO CONDITIONAL BIDDING WOULD BE ENTERTAINED AND THAT THERE WOULD BE NO CHANGES OF SPECIFICATIONS AT BID OPENING. WHICH STATED THAT THE BID "IS OFFERED UNDER THE FOLLOWING TERMS AND CONDITIONS AND IS GOOD ONLY IF THESE TERMS AND CONDITIONS ARE ACCEPTABLE TO THE COLLEGE.'. THE ADVERTISEMENT FOR BIDS WAS NOT SUBJECT TO THE RULES OF COMPETITIVE BIDDING PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS.

B-157928, JAN. 27, 1966

TO MISHARA CONSTRUCTION COMPANY, INC.:

BY LETTER DATED OCTOBER 28, 1965, WITH ENCLOSURES, YOU PROTESTED AGAINST THE REJECTION OF YOUR BID AND THE AWARD MADE TO ANOTHER BIDDER UNDER COMMUNITY FACILITIES ADMINISTRATION PROJECT NO. CH-VT.-26/D), WINDHAM COLLEGE, PUTNEY, VERMONT.

YOU CONTEND THAT THE AWARD MADE VIOLATED THE FEDERAL PROCUREMENT REGULATIONS IN THAT THE AWARD HAD BEEN MADE AS A RESULT OF AN UNADVERTISED BID AND THAT THE REJECTION OF YOUR BID WHICH WAS OTHERWISE LOW WAS IMPROPER UNDER THE CIRCUMSTANCES.

WHILE YOU REFER TO ALLEGED IMPROPRIETIES INVOLVED IN THE ADMINISTRATION OF THE ORIGINAL AND REVISED ADVERTISEMENT FOR BIDS, THE SOLE MATTER FOR CONSIDERATION HERE IS WHETHER THE REJECTION OF YOUR BID SUBMITTED ON OCTOBER 19, 1965, WAS PROPER. IT IS TO BE NOTED PARTICULARLY THAT ALL BIDDERS WERE INFORMED THAT NO CONDITIONAL BIDDING WOULD BE ENTERTAINED AND THAT THERE WOULD BE NO CHANGES OF SPECIFICATIONS AT BID OPENING. NOTWITHSTANDING SUCH NOTIFICATION, YOU ATTACHED TO YOUR BID A LETTER DATED OCTOBER 11, 1965, ADDRESSED TO THE COLLEGE, WHICH STATED THAT THE BID "IS OFFERED UNDER THE FOLLOWING TERMS AND CONDITIONS AND IS GOOD ONLY IF THESE TERMS AND CONDITIONS ARE ACCEPTABLE TO THE COLLEGE.' YOU THEN APPENDED SIX CONDITIONS TO THE ACCEPTANCE OF YOUR BID.

THE ADVERTISEMENT FOR BIDS WAS NOT SUBJECT TO THE RULES OF COMPETITIVE BIDDING PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS. THIS IS SO BECAUSE THE GOVERNMENT WAS NOT A PARTY TO THE BIDDING AND BECAUSE ANY RESULTANT CONTRACT WOULD BE BETWEEN THE COLLEGE AND THE SUCCESSFUL BIDDER WITHOUT IMPOSING ANY PRIMARY OBLIGATION ON GOVERNMENT FUNDS. UNDERSTAND THAT FEDERAL FUNDS WILL BE COMMITTED FOR THIS PROJECT UNDER THE PUBLIC WORKS ACCELERATION ACT, PUBLIC LAW 87-658, WHEREUNDER CONTRACTING PROCEDURES HAVE NOT BEEN PRESCRIBED FOR GRANT APPLICANTS, SUCH AS WINDHAM COLLEGE; MOREOVER, THE CONTRACTING PROCEDURES UTILIZED BY THE GRANTEES ARE NOT MADE SUBJECT TO THE FEDERAL PROCUREMENT STATUTES. BUT BE THAT AS IT MAY, THE COLLEGE SPECIFICALLY RESERVED THE RIGHT IN ITS ADVERTISEMENT TO REJECT ANY OR ALL BIDS, AND CLEARLY IT HAD THE RIGHT TO REJECT A BID WHICH OFFERED CONDITIONS REPUGNANT TO ITS PUBLISHED SPECIFICATIONS. IT WOULD SEEM ELEMENTARY THAT A BIDDER, TO BE FAVORABLY CONSIDERED, MUST SUBMIT A BID IN CONFORMITY WITH THOSE SPECIFICATIONS, OTHERWISE THE SEALED BID PROCEDURE CONTEMPLATED WOULD HAVE BEEN CONVERTED INTO AN AUCTION OR NEGOTIATION.

UPON REVIEW, WE AGREE THAT THE REJECTION OF YOUR LOW QUALIFIED BID WAS NOT ONLY PROPER BUT REQUIRED IN THE INTEREST OF MAINTAINING THE COMPETITIVE CHARACTER OF THE ADVERTISEMENT.