B-159833, OCT. 7, 1966

B-159833, OCT. 7, 1966

TO INDUSTRIAL DISTRIBUTING COMPANY OF ILLINOIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER, WITH ENCLOSURES, DATED AUGUST 1, 1966, PROTESTING AWARD OF CONTRACT TO ANYONE OTHER THAN YOURSELVES UNDER INVITATION FOR BIDS NO. NY-2-IS-ID-P-PO775, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, NEW YORK, NEW YORK.

THE INVITATION FOR BIDS, ISSUED MAY 23, 1966, REQUESTED BIDS FOR TWO ITEMS OF STEEL FENCE POSTS AND ONE ITEM OF FENCING WIRE TO COVER THE REQUIREMENTS OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT'S "TOURISM DEVELOPMENT PROGRAM (ANTIQUITIES SUB-PROJECT)," AMMAN, JORDAN. THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED JUNE 7, 1966.

AID'S REQUISITION, AMONG OTHER THINGS, CALLED FOR "200 EACH POST,CORNER, HIGH CARBON STEEL, TWO BRACE "T" TYPE DESIGN, LENGTH 8 FEET.' AS THERE WAS NO FEDERAL SPECIFICATION COVERING THIS ITEM THE GENERAL SERVICES ADMINISTRATION CONTACTED THE MCMASTER-CARR SUPPLY COMPANY, CHICAGO, ILLINOIS, TO OBTAIN DETAILS ON THE CONSTRUCTION OF THE ITEM. THE INFORMATION OBTAINED FROM MCMASTER-CARR FORMED THE BASIS FOR THE PURCHASE DESCRIPTION INCLUDED IN THE INVITATION FOR BIDS, ITEM 24, DESCRIBED AS FOLLOWS:

"24. POSTS, CORNER, TWO BRACE,"T" TYPE DESIGN, LENGTH 8 FT.

1. CARBON CONTENT--- MADE OF RAIL STEEL NO PERCENT OF CARBON.

2. WEIGHT PER FOOT--- NO. 1.33

3. CLAMPS (5) GALVANIZED

4. WEIGHT OF ANCHOR PLATE--- NO. .6

5. SIZE OF ANCHOR PLATE--- 6 IN. BY 4 IN.

6. DIMENSIONS OF POST--- 1 1/8 IN. BY 1-1 3/8 IN. BY 3/16 IN.'

THE BID SUBMITTED BY YOU WAS STRICTLY ON AN "ALL OR NONE" BASIS, AND BECAUSE OF THIS QUALIFICATION YOU WERE THE LOW BIDDER. THE BIDS WERE EVALUATED IN THE FOLLOWING AMOUNTS:

CHART

ITEM 22 ITEM 20 ITEM 24

FRANKLIN STEEL DIVISION OF

BORG-WARNER CORPORATION N/B $1.1241 N/B

MCMASTER-CARR

SUPPLY COMPANY N/B N/B $20.65

INDUSTRIAL DISTRIBUTING

COMPANY OF ILLINOIS $7.42 $1.267 $ 4.78

BECAUSE OF THE CONSIDERABLE DIFFERENCE BETWEEN THE TWO PRICES FOR ITEM 24 THE CONTRACTING OFFICER INVESTIGATED THE PRICE VARIANCE. IT WAS DISCOVERED THAT MCMASTER-CARR HAD SUBMITTED AN ERRONEOUS DESCRIPTION OF THE ITEM. THE DIMENSIONS OF THE POST AS ORIGINALLY GIVEN AND INCORPORATED INTO THE INVITATION WERE INACCURATE AND SHOULD HAVE BEEN 2 1/2 IN. BY 2 1/2 IN. BY 1/4 IN., WHILE THE BRACE SIZES SHOULD HAVE BEEN 2 IN. BY 2 IN. BY 1/4 IN.

THE GENERAL SERVICES ADMINISTRATION HAS PROPOSED TO AWARD ITEM 20 TO THE LOW BIDDER, FRANKLIN STEEL DIVISION OF THE BORG-WARNER CORPORATION, AND TO READVERTISE THEIR REQUIREMENTS FOR ITEMS 22 AND 24 UNDER REVISED SPECIFICATIONS. THEY ARE OF THE OPINION THAT THERE IS NO ALTERNATIVE TO CANCELLING THOSE PORTIONS OF THE INVITATION ON WHICH YOU WERE LOW DUE TO THE FACT THAT ITEM 24 OF THE INVITATION WAS ERRONEOUSLY DESCRIBED.

THE REJECTION OF BIDS AFTER OPENING, AND AFTER EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES, IS A SERIOUS MATTER AND MAY NOT BE DONE WITHOUT COGENT REASONS. OUR OFFICE HAS CONSISTENTLY MAINTAINED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF, AND ARE REQUIRED TO WORK IN THE BEST INTERESTS OF THE GOVERNMENT, THEIR ACTIONS IN REJECTING BIDS AND READVERTISING MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTEREST OF THE GOVERNMENT WILL BE BEST SERVED THEREBY. 17 COMP. GEN. 789, 790; B-153119, APRIL 1, 1964.

WE DO NOT HAVE ANY OBJECTION TO THE PROPOSED ACTION OF THE GENERAL SERVICES ADMINISTRATION. ITS PURPOSE IS TO CLARIFY SPECIFICATIONS IN ORDER TO OBTAIN FOR THE GOVERNMENT THE TYPE OF SUPPLIES DETERMINED BY ITS AGENTS TO REPRESENT ITS MINIMUM REQUIREMENTS. THE PRESENCE OF AN ERRONEOUSLY DESCRIBED BID ITEM IN AN INVITATION, WHOSE EFFECT IS TO CAUSE THE BIDDERS TO SUBMIT OFFERS ON TWO DIFFERENT PRODUCTS, PROVIDES A SUBSTANTIAL REASON TO REJECT THE BIDS AND READVERTISE THE ITEM. FURTHERMORE, YOUR BID ON AN "ALL OR NONE" BASIS MEANS THAT YOU WILL NOT ACCEPT ANY AWARD UNLESS AWARDED THE CONTRACT FOR ALL ITEMS FOR WHICH YOUR OFFER WAS SUBMITTED. THE PERMISSIVE QUALIFICATION OF YOUR BID MAKES IT IMPOSSIBLE TO AWARD ITEM 22 TO YOU UNDER THESE TERMS SINCE THE DESCRIPTION OF ITEM 24 WAS AMBIGUOUS, THEREBY PREVENTING AWARD OF ALL THE ITEMS TO YOU.

IN VIEW OF THE DISCRETION VESTED IN THE CONTRACTING AGENCY WITH RESPECT TO SUCH MATTERS, AND FOR THE REASONS STATED HEREIN, WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION AND YOUR PROTEST IS DENIED.