B-160868, APR. 13, 1967

B-160868, APR. 13, 1967

TO SOUTHERN SILK MILLS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1967, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION TAKEN BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, IN CONNECTION WITH YOUR TELEGRAPHIC BID AND LATE FORMAL BID, BOTH OF WHICH WERE SUBMITTED ON FEBRUARY 6, 1967, IN RESPONSE TO INVITATION FOR BIDS NO. DSA 100-67-B- 1454. ALSO, IN YOUR LETTER OF MARCH 23, 1967, WITH ENCLOSURES, YOU RAISE A QUESTION WHETHER THE PREDECESSOR INVITATION FOR BIDS WAS PROPERLY CANCELLED SUBSEQUENT TO BID OPENING.

THE SUBJECT PROCUREMENT WAS ORIGINALLY ADVERTISED UNDER AN INVITATION FOR BIDS DATED DECEMBER 9, 1966, AND OPENED ON JANUARY 4, 1967. AFTER OPENING, BUT BEFORE AWARD, IT WAS DETERMINED THAT THE ITEM DESCRIPTION PRINTED IN THE INVITATION AND THE MILITARY SPECIFICATION INCORPORATED THEREIN WERE CONFLICTING AND AMBIGUOUS FOR THE REASONS CITED BELOW. SPECIFICALLY, THE INVITATION DESCRIBED THE ITEM, IN PART, AS CLOTH WEIGHING 9.5 OUNCES PER SQUARE YARD. THE SPECIFICATION CITED WAS MIL C- 17155C BUT ERRONEOUSLY DATED JUNE 27, 1964, AND AMENDMENT NO. 1 DATED MAY 4, 1966. THE SPECIFICATION REQUIRED THAT THE CLOTH IN QUESTION WEIGH 9.5 PLUS OR MINUS 0.5 OUNCES PER SQUARE YARD. AMENDMENT NO. 1 DELETED THAT WEIGHT REQUIREMENT AND SUBSTITUTED IN LIEU THEREOF 10.0 (PLUS 1.0, MINUS 0.5) OUNCES PER SQUARE YARD. AS A RESULT, THE MINIMUM WEIGHT PER SQUARE YARD WAS 9.5 OUNCES.

WE ARE ADVISED THAT TWO OF THE FOUR BIDDERS RESPONDING TO THAT INVITATION MISUNDERSTOOD THE ITEM DESCRIPTION AND BID ON THE BASIS OF SUPPLYING CLOTH WEIGHING A MINIMUM OF 9.0 OUNCES PER SQUARE YARD. AS A RESULT OF THIS CONFUSION, THE INVITATION WAS CANCELLED AND THE PROCUREMENT WAS READVERTISED UNDER THE SUBJECT INVITATION CONTAINING A PROPERLY REVISED ITEM DESCRIPTION.

YOU QUESTION THE PROPRIETY OF THE CANCELLATION OF THE FIRST INVITATION ON THE GROUND THAT THE DECISION TO CANCEL WAS SOLELY PREDICATED UPON PROVIDING RELIEF TO THE LOW BIDDER WHO, BY REASON OF ITS UNREALISTICALLY LOW BID, COULD NOT HAVE PERFORMED THE CONTRACT AND WOULD HAVE HAD TO HAVE SUFFERED THE CONSEQUENCES THEREOF.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 STATES, IN THIS REGARD, AS FOLLOWS:

"/A) THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. * *

"/B) * * * INVITATIONS FOR BIDS MAY BE CANCELLED AFTER OPENING BUT PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT---

(I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION;

(VIII) FOR OTHER REASONS, CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT.'

IT IS WELL SETTLED THAT THE CANCELLATION OF AN INVITATION AND THE READVERTISEMENT OF THE PROCUREMENT ARE PARTICULARLY MATTERS OF ADMINISTRATIVE DISCRETION. ALSO, IT HAS BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BID, WHEN TO DO SO WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. 17 COMP. GEN. 554. IN THESE CIRCUMSTANCES, WE FIND THAT THE ACTION TAKEN IN CANCELLING THE INVITATION AND ISSUING A NEW INVITATION UNDER REVISED SPECIFICATIONS WAS NOT ONLY PROPER BUT REQUIRED. SEE 10 U.S.C. 2305 (A) AND (B).

THEREAFTER, ON JANUARY 27, 1967, THE AGENCY READVERTISED THE PROCUREMENT UNDER INVITATION NO. DSA 100-67-B-1454 WHICH PROVIDED THAT BIDS WERE TO BE OPENED ON FEBRUARY 6, 1967, AT 11:00 A.M., E.S.T. ALTHOUGH ASPR 2-202.1 PROVIDES THAT GENERALLY NOT LESS THAN 15 DAYS SHALL BE GIVEN TO BIDDERS TO RESPOND TO INVITATIONS, THE CONTRACTING OFFICER FELT THAT INASMUCH AS THE NEED FOR THE CLOTH WAS URGENT AND SINCE PROSPECTIVE BIDDERS WERE FAMILIAR WITH THE PROCUREMENT, HE DETERMINED THAT TEN DAYS BIDDING TIME WAS SUFFICIENT. HOWEVER, THE INVITATION ADDRESSED TO YOUR COMPANY DID NOT ARRIVE AT YOUR LOCAL POST OFFICE UNTIL 9:00 A.M., FEBRUARY 6, 1967, THE DAY OF BID OPENING. IN AN ATTEMPT TO MEET THE BID OPENING TIME, YOU IMMEDIATELY TELEGRAPHED A BID TO THE PROCURING AGENCY WHICH WAS DELIVERED AT 10:56 THAT MORNING; AND YOU ALSO MAILED A FORMAL BID LATER IN THE AFTERNOON OF THE SAME DAY WHICH WAS DELIVERED ON FEBRUARY 8, 1967.

THE INVITATION DID NOT AUTHORIZE TELEGRAPHIC BIDS OR THEIR CONSIDERATION FOR AWARD. SEE PARAGRAPH NO. 3 (A) OF THE BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), MADE A PART OF THE INVITATION. THEREFORE, YOUR TELEGRAPHIC BID COULD NOT BE CONSIDERED FOR AWARD. SEE, ALSO, ASPR 2-301 (B) WHICH PROVIDES THAT "TELEGRAPHIC BIDS SHALL NOT BE CONSIDERED UNLESS PERMITTED BY THE INVITATION FOR BIDS.' 40 COMP. GEN. 279.

INASMUCH AS YOUR FORMAL BID WAS NOT MAILED UNTIL SEVERAL HOURS AFTER BID OPENING TIME, THE CONTRACTING OFFICER DETERMINED THAT IT COULD NOT BE CONSIDERED FOR AWARD. PARAGRAPH NO. 6 (A) OF THE BIDDING INSTRUCTIONS, ENTITLED,"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" PROVIDED THAT BIDS RECEIVED AFTER BID OPENING BUT BEFORE AWARD WILL NOT BE CONSIDERED UNLESS THE LATE RECEIPT OF THE BID IS EXCUSABLE UNDER THE PROVISIONS OF THAT PARAGRAPH. NONE OF THE ENUMERATED FACTORS EXCUSING LATE RECEIPT WAS PRESENT IN YOUR CASE. UNDER THE CIRCUMSTANCES PERTAINING TO THE LATE RECEIPT OF YOUR BID, WE FIND NO BASIS FOR DISTURBING THE ADMINISTRATIVE CONCLUSION THAT YOUR BID WAS INEXCUSABLY LATE.

YOU CONTEND THAT THE ABOVE PROVISIONS SHOULD BE INTERPRETED CONVERSELY TO PERMIT CONSIDERATION OF BIDS RECEIVED AFTER OPENING WHEN THAT FACTOR WAS CAUSED BY MISHANDLING IN THE MAILS OF AN INVITATION TO A PROSPECTIVE BIDDER, ESPECIALLY WHERE, AS HERE, YOUR COMPANY RESPONDED IN GOOD FAITH AND AS QUICKLY AS POSSIBLE WITH AN OSTENSIBLE LOW BID. THE SHORT ANSWER TO THIS ARGUMENT IS A REFERENCE TO THE LATE BID PROVISIONS OF THE INVITATION WHICH FIXED THE CONDITIONS UNDER WHICH LATE BIDS COULD BE CONSIDERED AS "ACCEPTABLE" LATE BIDS.

YOUR ARGUMENT THAT SOUTHERN'S BID SHOULD BE CONSIDERED FOR AWARD IN ACCORDANCE WITH PARAGRAPH NO. 8 (B) OF THE INVITATION WHICH ALLOWS THE WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IS WITHOUT MERIT. A BID MAILED AFTER THE TIME SET FOR OPENING MAY NOT BE CONSIDERED REGARDLESS OF THE CAUSE OF THE DELAY. IN THIS REGARD, YOUR ATTENTION IS INVITED TO OUR DECISION AT 40 COMP. GEN. 126, WHEREIN WE HELD:

"WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE WHAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATION FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING.'

SIMILARLY, NO VALID BASIS EXISTS TO AGAIN REJECT ALL BIDS AND READVERTISE THE PROCUREMENT SINCE THERE IS NO COMPELLING REASON TO DISREGARD THE INJUNCTION OF ASPR 2-404.1 THAT AWARD MUST BE MADE TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER. B-155568, JANUARY 4, 1965. ALSO, IN THIS REGARD, MASSMAN CONSTRUCTION COMPANY V UNITED STATES, 102 CT.CL. 699,719, HELD AS FOLLOWS:

"* * * TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS. * * *"

THEREFORE, WHILE IT IS REGRETTED THAT SOUTHERN DID NOT RECEIVE ITS COPY OF THE INVITATION IN SUFFICIENT TIME TO RESPOND BY THE TIME AND DATE FIXED FOR THE OPENING OF BIDS, OUR REVIEW OF THE RECORD ESTABLISHES THAT PROPER PROCEDURES WERE FOLLOWED. HENCE, THE TIME FACTOR WHICH ADVERSELY AFFECTED YOUR OPPORTUNITY TO COMPETE DOES NOT CONSTITUTE A LEGAL BASIS TO QUESTION THE AWARD AS MADE.