B-160626, MAR. 6, 1967

B-160626: Mar 6, 1967

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS PROTESTING AGAINST THE PROPOSED REJECTION OF ALL BIDS AND CANCELLATION OF INVITATION FOR BIDS NO. FIVE BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 29. YOU WERE THE LOW BIDDER AT $9. YOU HAVE PROTESTED THIS DECISION BECAUSE YOU UNDERSTAND IT IS FOR THE PURPOSE OF CHANGING SPECIFICATIONS. WHICH YOU BELIEVE IS NOT JUSTIFICATION FOR SUCH ACTION. YOU CONTEND THAT ANY CHANGES IN SPECIFICATIONS WHICH ARE NECESSARY CAN BE ACCOMPLISHED BY CHANGE ORDERS TO THE CONTRACT WHICH SHOULD BE AWARDED TO YOU. YOU ALSO MAKE CERTAIN ALLEGATIONS CONCERNING EFFORTS OF CIVIL SERVICE UNIONS TO HAVE THE WORK CALLED FOR DONE BY CIVIL SERVICE EMPLOYEES AND. GSA REPORTS THAT ALTHOUGH A GENERAL REVISION OF CLEANING SPECIFICATIONS IS UNDER CONSIDERATION.

B-160626, MAR. 6, 1967

TO BLACK MOUNTAIN MAINTENANCE CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS PROTESTING AGAINST THE PROPOSED REJECTION OF ALL BIDS AND CANCELLATION OF INVITATION FOR BIDS NO. PBS-BMD- 67-10, ISSUED BY REGION 9, GENERAL SERVICES ADMINISTRATION (GSA).

THE SUBJECT INVITATION, ISSUED ON SEPTEMBER 15, 1966, SOLICITED BIDS TO PROVIDE JANITORIAL SERVICES FOR A GOVERNMENT BUILDING IN SAN FRANCISCO FOR A ONE-YEAR PERIOD. FIVE BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 29. YOU WERE THE LOW BIDDER AT $9,359.20 PER MONTH. ALTHOUGH A SURVEY SHOWED YOUR FIRM'S CAPACITY TO PERFORM THE CONTRACT TO BE SATISFACTORY, NO AWARD HAS BEEN MADE AND THE DECISION HAS NOW BEEN MADE TO REJECT ALL BIDS, CANCEL THE INVITATION, AND ACCOMPLISH THE NECESSARY SERVICES THROUGH THE USE OF GOVERNMENT PERSONNEL.

YOU HAVE PROTESTED THIS DECISION BECAUSE YOU UNDERSTAND IT IS FOR THE PURPOSE OF CHANGING SPECIFICATIONS, WHICH YOU BELIEVE IS NOT JUSTIFICATION FOR SUCH ACTION. YOU CONTEND THAT ANY CHANGES IN SPECIFICATIONS WHICH ARE NECESSARY CAN BE ACCOMPLISHED BY CHANGE ORDERS TO THE CONTRACT WHICH SHOULD BE AWARDED TO YOU. YOU ALSO MAKE CERTAIN ALLEGATIONS CONCERNING EFFORTS OF CIVIL SERVICE UNIONS TO HAVE THE WORK CALLED FOR DONE BY CIVIL SERVICE EMPLOYEES AND, IN THIS CONNECTION, CONTEND THAT THE WORK CAN BE DONE MORE ECONOMICALLY BY PRIVATE CONTRACTORS.

GSA REPORTS THAT ALTHOUGH A GENERAL REVISION OF CLEANING SPECIFICATIONS IS UNDER CONSIDERATION, THIS IS NOT THE BASIS OF ITS PROPOSED ACTION. IS REPORTED THAT THE DECISION TO USE GOVERNMENT CUSTODIAL PERSONNEL IN LIEU OF A PRIVATE CONTRACTOR IS BASED ON AN ANTICIPATED SAVING OF APPROXIMATELY $11,500. THE CONCLUSION THAT THIS SAVING MAY BE EXPECTED BY USING GOVERNMENT PERSONNEL WAS REACHED AFTER A COMPARATIVE COST ANALYSIS WAS MADE PURSUANT TO GSA POLICY AS SET FORTH IN THE GSA HANDBOOK, OPERATION AND MAINTENANCE OF REAL PROPERTY, PBS P 5800.18A, CHAPTER 6, PART 4, CONTRACTING POLICY. THIS POLICY DICTATES THAT CONSIDERATION BE GIVEN ON A CASE BY CASE BASIS TO THE TOTAL BENEFITS WHICH THE GOVERNMENT MAY BE EXPECTED TO DERIVE FROM THE TWO METHODS OF CLEANING ITS BUILDINGS. PARAGRAPH 33 OF THESE PROVISIONS ESTABLISHED A FORMULA FOR COMPARING COSTS, THE UTILIZATION OF WHICH RESULTED IN THE DETERMINATION THAT AN $11,500 SAVING COULD BE REALIZED BY USE OF GOVERNMENT PERSONNEL. THE PROPOSED ACTION HAS NOT BEEN TAKEN PENDING THE DECISION OF OUR OFFICE ON YOUR PROTEST.

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 10 (B) OF THE INSTRUCTIONS TO BIDDERS THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS RECEIVED UNDER THE INVITATION. FEDERAL PROCUREMENT REGULATIONS (FPR) 1 2.404.1 ALSO RECOGNIZES THE AUTHORITY OF THE CONTRACTING OFFICER TO REJECT ALL BIDS AFTER OPENING AND PRIOR TO AWARD WHERE HE DETERMINES THERE IS A COMPELLING REASON TO DO SO. FROM THE FOREGOING, IT IS CLEAR THAT THE QUESTION OF REJECTING ALL BIDS 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 ABUSE OF THEIR DISCRETIONARY POWERS IN THIS REGARD, THIS OFFICE WILL NOT OBJECT TO SUCH ACTION. OF COURSE, WE HAVE REPEATEDLY OBSERVED THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER OR PROSPECTIVE BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SUCH ACTION SHOULD NOT BE TAKEN EXCEPT FOR COGENT REASONS. HOWEVER, WE BELIEVE THERE IS A PROPER BASIS FOR THE DETERMINATION HERE TO REJECT ALL BIDS AND CANCEL THE INVITATION AND, THAT BEING THE CASE, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE PROPOSED ACTION.