B-159287, JUL. 26, 1966

B-159287: Jul 26, 1966

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TO LEE FILTER CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 26. THE INVITATION WAS ISSUED ON APRIL 13. AFTER BIDS WERE RECEIVED AND OPENED. THE PROCURING ACTIVITY FOUND THAT THE INVITATION WAS DEFECTIVE AND ADVISED THE BIDDERS THAT IT WAS THEREFORE CANCELLED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (B) (I). IN HIS REPORT TO OUR OFFICE ON YOUR PROTEST THE CONTRACTING OFFICER HAS CITED THE FOLLOWING DEFICIENCIES IN THE SUBJECT INVITATION: "/1) THE FILTER REQUIRED BY THE GOVERNMENT WAS NOT PROPERLY DESCRIBED BECAUSE THE DATE AND THE REVISION OF THE SPECIFICATION WERE NOT INCLUDED IN THE PURCHASE DESCRIPTION AS REQUIRED BY ASPR 1-1201 (A) AND 2-201 (A) (VII).

B-159287, JUL. 26, 1966

TO LEE FILTER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 26, 1966, PROTESTING AGAINST CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DSA 700-66-4640 AND READVERTISEMENT OF THE REQUIREMENT BY THE DEFENSE SUPPLY AGENCY.

THE INVITATION WAS ISSUED ON APRIL 13, 1966, WITH OPENING SCHEDULED FOR APRIL 29, 1966, AND CALLED FOR BIDS ON FURNISHING 10,500 FILTER ELEMENTS, WITH A LIKE QUANTITY SET-ASIDE FOR SMALL BUSINESS, DESCRIBED AS FOLLOWS:

"FILTER ELEMENT, FLUID PRESSURE * * * TYPE 2, CLASS 1, IN ACCORDANCE WITH MIL SPEC MIL-F-20627, TITLED FILTER ASSEMBLY AND FILTER ELEMENTS, FLUID PRESSURE (FOR ENGINES WITH LIQUID FUEL INJECTION SYSTEMS).'

AFTER BIDS WERE RECEIVED AND OPENED, THE PROCURING ACTIVITY FOUND THAT THE INVITATION WAS DEFECTIVE AND ADVISED THE BIDDERS THAT IT WAS THEREFORE CANCELLED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (B) (I), WHICH PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELLED AFTER OPENING BUT PRIOR TO AWARD WHERE THE CONTRACTING OFFICER DETERMINES THAT THE PARTICULAR INVITATION INCLUDES INADEQUATE OR AMBIGUOUS SPECIFICATIONS.

IN HIS REPORT TO OUR OFFICE ON YOUR PROTEST THE CONTRACTING OFFICER HAS CITED THE FOLLOWING DEFICIENCIES IN THE SUBJECT INVITATION:

"/1) THE FILTER REQUIRED BY THE GOVERNMENT WAS NOT PROPERLY DESCRIBED BECAUSE THE DATE AND THE REVISION OF THE SPECIFICATION WERE NOT INCLUDED IN THE PURCHASE DESCRIPTION AS REQUIRED BY ASPR 1-1201 (A) AND 2-201 (A) (VII). THE PURCHASE DESCRIPTION SHOULD HAVE CITED THE SPECIFICATION AS BEING MIL-F-20627B DATED 30 OCTOBER 1962.

"/2) FILTERS PROCURED UNDER MIL-F-20627B DATED 30 OCTOBER 1962 MUST BE TESTED AND QUALIFIED AND LISTED OR APPROVED FOR LISTING ON THE APPLICABLE QUALIFIED PRODUCTS LIST. THE QUALIFIED PRODUCTS CLAUSE REQUIRED BY ASPR 1 -1107.2 (A) AND 2-201 (B) (III) WAS OMITTED FROM THE INVITATION. THE INCLUSION OF THIS CLAUSE WOULD HAVE REQUIRED THE CITATION OF THE CURRENT QPL LIST AND THE QUALIFYING OFFICE, NAMELY, QPL 20627-8 DATED 4 FEBRUARY 1966 AND BUREAU OF SHIPS, DEPARTMENT OF THE NAVY, WASHINGTON 25, D.C.

"/3) BIDS WERE INVITED ON AN F.O.B. DESTINATION BASIS; HOWEVER,CLAUSE NO. 4.107 WAS CHECKED AS BEING APPLICABLE TO THE INVITATION.

"/4) ON PAGE 7 OF THE INVITATION UNDER THE HEADING "SECTION 6.0 SPECIAL PROVISIONS NTINUED)," THE BLOCK WAS NOT CHECKED WHICH WOULD MAKE STANDARD FORM 33A, DECEMBER 1964 EDITION, APPLICABLE TO THE INVITATION.'

ALTHOUGH NOTING FOUR DEFICIENCIES, IT IS THE CONTRACTING OFFICER'S OPINION THAT ONLY THE FIRST TWO ARE OF SUFFICIENT MAGNITUDE TO JUSTIFY CANCELLATION OF THE INVITATION, AND HIS DECISION TO DO SO WAS THEREFORE BASED ON THEM. THE DECISION THAT THOSE TWO DEFICIENCIES REQUIRED CANCELLATION IS EXPLAINED AS FOLLOWS:

"/2) BY OMITTING REFERENCE TO THE REVISION AND THE DATE OF THE SPECIFICATION, THE DATE AND NUMBER OF THE QUALIFIED PRODUCTS LIST, AND THE QUALIFYING OFFICE, THE GOVERNMENT'S REQUIREMENTS WERE NOT CLEAR. MIL-F- 20627 DATED 5 MARCH 1952 IS ENTITLED "FILTERS, DIESEL--- FUEL--- OIL (NAVY STANDARD)" AND DOES NOT DESCRIBE THE ELEMENTS IN TERMS OF TYPES AND CLASSES WHEREAS THE A AND B VERSION OF THE SPECIFICATION BEAR THE TITLE "FILTERS AND FILTER ELEMENTS, FLUID PRESSURE (FOR ENGINES WITH LIQUID FUEL INJECTION SYSTEMS)" AND DESCRIBES FILTER ELEMENTS IN TERMS OF TYPES AND CLASSES. BY OMITTING THE REVISION AND DATE OF THE SPECIFICATION, IT CANNOT BE STATED THAT THE GOVERNMENT INTENDED TO PURCHASE FILTERS CONFORMING TO THE REQUIREMENTS OF THE ORIGINAL SPECIFICATION NOR DOES IT ESTABLISH WITH CLARITY THAT THE GOVERNMENT INTENDED TO PROCURE FILTERS CONFORMING TO THE REQUIREMENTS OF EITHER REVISION A OR B. FROM A TECHNICAL STANDPOINT, FILTERS MEETING THE REQUIREMENTS OF THE ORIGINAL SPECIFICATION WOULD NOT BE ACCEPTABLE INASMUCH AS THESE FILTERS WOULD NOT HAVE THE FILTERING CAPACITY EQUAL TO THOSE MEETING THE REQUIREMENTS OF THE A AND B VERSIONS OF THE SPECIFICATION. ALTHOUGH THE DIFFERENCES BETWEEN REVISIONS A AND B ARE MINOR, THERE ARE DIFFERENCES IN DIMENSIONS AND TESTING (ENC. 4).

"/3) THE GOVERNMENT'S REQUIREMENTS ARE FOR A FILTER THAT HAS BEEN QUALIFIED UNDER MIL-F-20627B. BY OMISSION OF THE NOTICE REQUIRED BY ASPR 1-1107.2 (A) AND FAILING TO SPECIFY THE CURRENT LIST AND THE QUALIFYING OFFICE, BIDDERS WERE NOT SPECIFICALLY APPRISED OF THIS REQUIREMENT AND AFFORDED AN OPPORTUNITY OF QUALIFYING PRIOR TO BID OPENING. IN THIS CONNECTION, IT IS TO BE NOTED THAT THE TWO LOW BIDS RECEIVED IN RESPONSE TO THIS INVITATION WERE SUBMITTED BY FIRMS WHOSE PRODUCT DOES NOT APPEAR ON QPL 20627-8 DATED 4 FEBRUARY 1966. OF COURSE, IT IS RECOGNIZED THAT THE A AND B VERSIONS OF THE SPECIFICATION DO SPECIFICALLY REQUIRE THAT THE PRODUCT FURNISHED THEREUNDER BE QUALIFIED; BUT THEY DO NOT GIVE THE CURRENT QUALIFICATION LIST. THE ORIGINAL SPECIFICATION IN PARAGRAPH H.2. PROVIDED "UNLESS OTHERWISE APPROVED BY THE BUREAU CONCERNED, BIDS WILL BE CONSIDERED AND AWARDS MADE ONLY FOR BRANDS AND TYPES OF PRODUCTS ON THE NAVY DEPARTMENT'S ACCEPTABLE LIST OF APPROVED MATERIALS. THIS CENTER ONLY HAS AVAILABLE QPL LIST NO. 20627-7 AND 20627-8. THE DATE OF QPL 20627 7 IS 20 AUGUST 1964. EARLIER LISTS ARE NOT AVAILABLE TO PERMIT CONSIDERATION OF BIDS THAT MAY HAVE BEEN SUBMITTED ASSUMING THE GOVERNMENT REQUIRED THE A VERSION OF THE SPECIFICATION.'

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. 17 COMP. GEN. 554; 26 ID. 49; 37 ID. 760; PERKINS V. LUKENS STEEL CO., 310 U.S. 113. MOREOVER, BY PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION, STANDARD FORM 33-A, INCORPORATED THEREIN BY REFERENCE, THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS RECEIVED UNDER THE INVITATION, WHICH AUTHORITY IS IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 2305 (C). INDICATED HERETOFORE, ASPR 2-404.1 (B) (I) ALSO RECOGNIZES THE AUTHORITY OF THE CONTRACTING OFFICER TO REJECT ALL BIDS AFTER OPENING AND PRIOR TO AWARD WHERE HE DETERMINES THAT THE PARTICULAR INVITATION INCLUDES INADEQUATE OR AMBIGUOUS SPECIFICATIONS. FROM THE FOREGOING, IT IS CLEAR THAT THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION.

SINCE THE RESPONSIBILITY FOR MAKING A DETERMINATION TO REJECT ALL BIDS RESTS WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY, IN THE ABSENCE OF CLEAR PROOF OF THE ABUSE OF THEIR DISCRETIONARY POWERS IN THIS REGARD, THIS OFFICE WILL NOT OBJECT TO SUCH ACTION. THIS IS ESPECIALLY TRUE WHERE, AS HERE, THE PURPOSE IS TO CORRECT A DEFICIENCY IN THE INVITATION. OF COURSE, WE HAVE REPEATEDLY OBSERVED THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER OR PROSPECTIVE BIDDER HAS LEARNED HIS COMPETITOR'S PRICES IS A SERIOUS MATTER AND SUCH ACTION SHOULD NOT BE TAKEN EXCEPT FOR COGENT REASONS. HOWEVER, WE BELIEVE THERE WAS A PROPER BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION OF THE INSUFFICIENCY OF THE INVITATION AND, THAT BEING THE CASE, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ACTION TAKEN IN THE MATTER.

WITH REGARD TO THE STATEMENT IN YOUR TELEGRAM, TO THE EFFECT, THAT BECAUSE THE ITEM HAS BEEN DESCRIBED THE SAME WAY MANY TIMES BEFORE THE SUBJECT DESCRIPTION IS CLEAR, WE HAVE BEEN ADVISED THAT THE PROCURING ACTIVITY INVOLVED IN THE SUBJECT PROCUREMENT IS AWARE OF THREE PREVIOUS PROCUREMENTS OF THIS ITEM. IT IS REPORTED THAT THE INVITATIONS IN TWO OF THESE PROCUREMENTS INCLUDED COMPLETE PURCHASE DESCRIPTIONS AS WELL AS A QUALIFIED PRODUCTS CLAUSE. THE THIRD PROCUREMENT IS ITEM 2 UNDER INVITATION FOR BIDS NO. DSA-700-66-4330, ISSUED APRIL 5, 1966. SINCE THE DESCRIPTION IN THAT INVITATION IS DEFECTIVE IN THE SAME MANNER AS THE DESCRIPTION IN THE SUBJECT INVITATION, AS WELL AS IN TWO OTHER RESPECTS, BIDS ON ITEM 2 WILL ALSO BE REJECTED. EVEN IF THE ITEM HAS BEEN PROCURED IN THE PAST UNDER A DEFECTIVE DESCRIPTION, WE DO NOT BELIEVE THAT THIS FACT WOULD JUSTIFY OUR OBJECTING TO WHAT WE CONSIDER PROPER ADMINISTRATIVE ACTION IN THE INSTANT CASE.