B-158355, JUN. 22, 1966

B-158355: Jun 22, 1966

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 14. THAT YOU SHOULD BE ALLOWED SOME RELIEF FOR THE DAMAGES YOU HAVE INCURRED BY REASON OF THE INVESTMENT OF TIME AND MONEY IN CONNECTION WITH YOUR BID AND ITS EVALUATION. THE INVITATION WAS ISSUED DECEMBER 9. BIDS WERE OPENED JANUARY 8. BIDS WERE REQUESTED ON ITEM NO. 1. THE FOLLOWING BIDS WERE RECEIVED: TABLE A. THE OFFICIAL RECORD IN THIS CASE SHOWS THAT THE INVITATION WAS CANCELLED FOLLOWING CONSIDERATION OF PROTESTS RAISED CONCERNING ALLEGED AMBIGUITIES AND DISCREPANCIES IN THE SPECIFICATIONS. IT WAS THE ADMINISTRATIVE CONCLUSION THAT AT BEST THE SPECIFICATIONS WERE SUBJECT TO VARIOUS INTERPRETATIONS AND IT WAS AGREED THAT REVISION TO MORE PRECISE AND DEFINITIVE REQUIREMENTS SHOULD BE ACCOMPLISHED TO AVOID DIFFICULTIES DURING CONTRACTOR PERFORMANCE.

B-158355, JUN. 22, 1966

TO ARKAY INTERNATIONAL, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 14, 1966, PROTESTING CANCELLATION OF INVITATION FOR BIDS NO. 36-600-65-427 BY THE DEPARTMENT OF THE AIR FORCE. YOU REQUESTED THAT THE INVITATION BE REINSTATED AND AWARD BE MADE TO THE LOWEST RESPONSIBLE BIDDER AND SUGGESTED, IN THE ALTERNATIVE, IN EFFECT, THAT YOU SHOULD BE ALLOWED SOME RELIEF FOR THE DAMAGES YOU HAVE INCURRED BY REASON OF THE INVESTMENT OF TIME AND MONEY IN CONNECTION WITH YOUR BID AND ITS EVALUATION. YOUR ATTORNEY, MR. MILTON FISHER, BY TELEPHONE CALL OF JUNE 9, 1966, HAS INFORMALLY REQUESTED THAT WE CONSIDER A DIRECTED NEGOTIATION WITH YOUR COMPANY IN THE CIRCUMSTANCES.

THE INVITATION WAS ISSUED DECEMBER 9, 1964, AND BIDS WERE OPENED JANUARY 8, 1965. BIDS WERE REQUESTED ON ITEM NO. 1, 298 EACH, AND ITEM NO. 2, 527 EACH, MULTIMETER, AN/PSM6, WITH BOTH ITEMS SPECIFYING "FIRST ARTICLES APPROVAL REQUIRED.' THE FOLLOWING BIDS WERE RECEIVED:

TABLE

A. S/B) INTERNATIONAL RESEARCH AND ENGINEERING CORP. $40,491

B. S/B AIMES ENGINEERING CO., INC. 86,770

C. S/B MED. ELECTRONICS, INC. 105,882

D. S/B ARKAY INTERNATIONAL, INC. 115,520

E. S/B BRUNO-NEW YORK INDUSTRIES, CORP. 123,511

BIDDERS A, B, AND C RECEIVED NEGATIVE FACILITY CAPABILITY REPORTS (FCR) BECAUSE OF DEFICIENCIES IN CAPACITY OR CREDIT.

THE OFFICIAL RECORD IN THIS CASE SHOWS THAT THE INVITATION WAS CANCELLED FOLLOWING CONSIDERATION OF PROTESTS RAISED CONCERNING ALLEGED AMBIGUITIES AND DISCREPANCIES IN THE SPECIFICATIONS, INCLUDING THE REQUIREMENT FOR FIRST ARTICLE TESTING OF A DUAL QUANTITY OF ITEMS. THE PROTESTS CONSIDERED COVERED ITEMIZATION OF DEFICIENCIES IN THE TECHNICAL ORDERS, TECHNICAL AMBIGUITIES IN SPECIFICATIONS, MISSTATED AND AMBIGUOUS FIRST ARTICLE REQUIREMENTS, UNREALISTIC DELIVERY SCHEDULES, PROCUREMENT ADMINISTRATIVE IRREGULARITIES BY THE PROCURING OFFICE IN NOT ADHERING TO APPLICABLE PRINCIPLES IMPOSED BY THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) AND POSSIBLE PATENT INFRINGEMENTS IN THE USE OF THE CIRCUIT BREAKER REQUIRED. IT WAS THE ADMINISTRATIVE CONCLUSION THAT AT BEST THE SPECIFICATIONS WERE SUBJECT TO VARIOUS INTERPRETATIONS AND IT WAS AGREED THAT REVISION TO MORE PRECISE AND DEFINITIVE REQUIREMENTS SHOULD BE ACCOMPLISHED TO AVOID DIFFICULTIES DURING CONTRACTOR PERFORMANCE. HENCE, THE SPECIFICATIONS WERE ADMINISTRATIVELY CONSIDERED TO BE INADEQUATE AND AMBIGUOUS AND THE INVITATION WAS CANCELLED.

WHILE IT IS THE OPINION OF THIS OFFICE, BASED UPON THE SUBMITTED RECORD, THAT THE SPECIFICATIONS WERE NEITHER SUFFICIENTLY INADEQUATE NOR AMBIGUOUS AS TO REQUIRE THE CANCELLATION OF THE INVITATION IT APPEARS THAT THE CONTRACTING OFFICER AND THE PROCUREMENT AGENCY WERE ACTING IN GOOD FAITH IN THE BELIEF THAT CORRECTED SPECIFICATIONS WOULD IMPROVE THE INVITATION AND RESULT IN EVALUATION OF FACTORS APPLICABLE TO ALL BIDDERS, WHEN THEY ACTED UNDER THE AUTHORITY OF ASPR 2-404.1 (B) (I), WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION FOR BIDS CONTAINING INADEQUATE OR AMBIGUOUS SPECIFICATIONS. IT FURTHER APPEARS THAT IN THE INTERIM PERIOD OF TIME SPENT IN ANALYZING PROTESTS AGAINST AN AWARD AND CONDUCTING FACILITIES CAPABILITY SURVEYS OF THE BIDDERS, THE FUNDS WHICH HAD BEEN AVAILABLE TO COVER THE AIR FORCE REQUIREMENTS HAD BEEN WITHDRAWN, THAT THE NUMBER OF ITEMS ADVERTISED WERE NO LONGER REQUIRED AND THAT FUTURE REQUIREMENTS WOULD BE INCLUDED IN THE NEXT REQUIREMENTS COMPUTATION. THE REDUCED NEEDS APPLICABLE TO THE CANCELLED PROCUREMENTS ARE FOR 339 MULTIMETERS OF WHICH A PURCHASE REQUESTED FOR 125 HAS BEEN RECEIVED AT SAN ANTONIO AIR MATERIEL AREA, (SAAMA). THE PURCHASE REQUEST FOR 214, THE REMAINDER OF THE 339 PRESENTLY REQUIRED IS IN PROCESS AT MIDDLETOWN AIR MATERIEL AREA, WHICH STATIONS PHASE-OUT, HAVING HAD SOME PROBABLE BEARING ON THE HANDLING OF THE PROCUREMENT AT ISSUE, IS NOW BEING COMPLETED. IT APPEARS, THEREFORE, THAT THE CHANGED REQUIREMENTS FURTHER SUPPORT AUTHORIZATION FOR CANCELLATION OF THE INVITATION AS PROVIDED IN ASPR 2 404.1/B) (III). IS ADMINISTRATIVELY REPORTED THAT WHEN THE PURCHASE REQUEST FOR 214 MULTIMETERS AND THE SPECIFICATION CHANGES ARE RECEIVED AT SAAMA THE NEW PROCUREMENT PLAN WILL BE FORMULATED AND SUBSEQUENT SOLICITATION FOR THESE REQUIREMENTS WILL BE SENT TO YOUR COMPANY.

IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND BY THE COURTS THAT THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS A MATTER OF ADMINISTRATIVE DISCRETION. ALSO, IT HAS BEEN HELD THAT A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BIDS. 17 COMP. GEN. 554; 26 ID. 49; PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, 6 F.SUPP. 761; COLORADO PAVING COMPANY V. MURPHY, 78 F. 28. THE CIRCUMSTANCES WE FIND THAT THE ACTION TAKEN IN CANCELLING THE INVITATION WAS NOT ARBITRARY OR AN ABUSE OF THE ADMINISTRATIVE POWERS AND THAT THE REDUCED REQUIREMENT FOR THE PROCUREMENT PROVIDED A FURTHER REASON FOR CANCELLATION AND MAKES IMPROPER A DIRECTED AWARD TO ANY BIDDER AT THIS TIME. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461.

ACCORDINGLY, WE MUST DENY YOUR REQUEST FOR REINSTATEMENT OF THE ORIGINAL INVITATION.

REGARDING YOUR SUGGESTION THAT THE AIR FORCE BE DIRECTED TO NEGOTIATE WITH YOUR COMPANY IN FUTURE PROCUREMENTS OF THIS ITEM, APPARENTLY BECAUSE THE INVITATION WAS CANCELLED, WE MUST ADVISE THAT THESE CIRCUMSTANCES ARE NOT INCLUDED IN ASPR 3-100, ET SEQ., WHICH PROVIDES AUTHORITY FOR PROCUREMENT BY NEGOTIATION AND THE LIMITATIONS THEREON.

REGARDING YOUR SUGGESTION OF ENTITLEMENT TO DAMAGES FOR TIME AND MONEY INVESTED UNDERGOING FACILITY CAPABILITY REVIEW, THE COURTS HAVE HELD THAT AN UNSUCCESSFUL BIDDER IS NOT ENTITLED TO RECOVER DAMAGES FOR FAILURE TO CONTRACT WITH HIM. HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F.SUPP. 409, AND AUTHORITIES CITED THEREIN.

THEREFORE, THERE IS NO LEGAL BASIS UPON WHICH YOUR SUGGESTED CLAIM FOR DAMAGES COULD BE ALLOWED.