B-161803, NOV. 9, 1967

B-161803: Nov 9, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REINSTATEMENT OF BIDS AFTER DETERMINATION TO CANCEL INVITATION AND READVERTISE BECAUSE OF CONFUSION CAUSED BY INCLUSION OF PAGES REQUESTING QUOTATIONS ON SMALL BUSINESS SET ASIDE PORTION AS WELL AS NON-SET ASIDE AND AWARD TO LOW BIDDER IS PROPER. A LOW BIDDER WHO SUBMITS BIDS ON BRAND NAME BASIS AND BID ON ITEMS EQUAL TO BRAND NAME HAS NOT SUBMITTED LOW BID ON AN ALTERNATE BASIS UNDER INVITATION WHICH PERMITS SUBMISSION OF ALTERNATE BID IF IDENTICAL SUPPLIES HAVE BEEN PREVIOUSLY FURNISHED BUT HAS SUBMITTED TWO BIDS RESPONSIVE TO INVITATION. DETERMINATION THAT ARTICLE IS EQUAL TO BRAND NAME IS NOT SHOWN TO BE EITHER CAPRICIOUS OR ARBITRARY. SINCE ONLY TWO BIDDERS WHO DID NOT BID ON NON-SET-ASIDE PORTION AND SINCE THEY WERE NOT LOW.

B-161803, NOV. 9, 1967

BIDS - REJECTION AND READVERTISEMENT - REINSTATEMENT DECISION TO SECY. OF THE NAVY CONCERNING PROTESTS OF LIQUIDONICS, INC.; LOW BIDDER, AIRCRAFT EQUIPMENT TESTING CO., INC.; AND SAN ELECTRIC CORPORATION FOR TEST STANDS FOR NAVAL AIR SYSTEMS COMMAND (NAVAIR). REINSTATEMENT OF BIDS AFTER DETERMINATION TO CANCEL INVITATION AND READVERTISE BECAUSE OF CONFUSION CAUSED BY INCLUSION OF PAGES REQUESTING QUOTATIONS ON SMALL BUSINESS SET ASIDE PORTION AS WELL AS NON-SET ASIDE AND AWARD TO LOW BIDDER IS PROPER. A LOW BIDDER WHO SUBMITS BIDS ON BRAND NAME BASIS AND BID ON ITEMS EQUAL TO BRAND NAME HAS NOT SUBMITTED LOW BID ON AN ALTERNATE BASIS UNDER INVITATION WHICH PERMITS SUBMISSION OF ALTERNATE BID IF IDENTICAL SUPPLIES HAVE BEEN PREVIOUSLY FURNISHED BUT HAS SUBMITTED TWO BIDS RESPONSIVE TO INVITATION. DETERMINATION THAT ARTICLE IS EQUAL TO BRAND NAME IS NOT SHOWN TO BE EITHER CAPRICIOUS OR ARBITRARY. SINCE ONLY TWO BIDDERS WHO DID NOT BID ON NON-SET-ASIDE PORTION AND SINCE THEY WERE NOT LOW, NO BIDDER WAS PREJUDICED BY INCLUSION OF PAGE IN INVITATION ON SET ASIDE PORTION, THEREFORE AWARD SHOULD BE REINSTATED.

TO MR. SECRETARY:

BY LETTER DATED AUGUST 2, 1967, WITH ENCLOSURES, AS SUPPLEMENTED BY LETTER DATED OCTOBER 6, 1967, THE COUNSEL, NAVAL AIR SYSTEMS COMMAND, FURNISHED DOCUMENTED REPORTS ON THE PROTESTS OF LIQUIDONICS, INC., AIRCRAFT EQUIPMENT TESTING CO., INC., AND SUN ELECTRIC CORPORATION UNDER INVITATION FOR BIDS NO. N00019-67-B-0059 ISSUED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR), WASHINGTON, D.C.

THE SUBJECT INVITATION WAS ISSUED ON JANUARY 12, 1967, AS A 50 PERCENT SMALL BUSINESS SET-ASIDE, FOR THE PROCUREMENT OF PORTABLE HYDRAULIC TEST STANDS, MODELS AHT-63 AND AHT-64. SECTION "QQ" OF THE SCHEDULE CALLED FOR BIDS ON TEST STANDS BUILT WITH EITHER BRAND NAME VENDOR ITEMS OR WITH VENDOR ITEMS "EQUAL" TO THE BRAND NAME ITEMS, AS IDENTIFIED ON THE APPLICABLE DRAWINGS BY MANUFACTURER'S MODEL NUMBER, AND REQUIRED BIDDERS TO INDICATE AND IDENTIFY ANY "EQUAL" SUBSTITUTES FOR THE BRAND NAME VENDOR ITEM. PARAGRAPH (3) OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS OF THE INVITATION PROVIDED, IN PERTINENT PART, AS FOLLOWS: ,/3) NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE (NOV. 1963)

"/A) GENERAL. A PORTION OF THIS PROCUREMENT, AS IDENTIFIED ELSEWHERE IN THE SCHEDULE, HAS BEEN SET ASIDE FOR AWARD ONLY TO ONE OR MORE SMALL BUSINESS CONCERNS. NEGOTIATIONS FOR AWARD OF THIS SET ASIDE PORTION WILL BE CONDUCTED ONLY WITH RESPONSIBLE SMALL BUSINESS CONCERNS WHO HAVE SUBMITTED RESPONSIVE QUOTATIONS ON THE NON-SET-ASIDE PORTION AT A UNIT PRICE WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET-ASIDE PORTION. * * *" SEVEN BIDS WERE RECEIVED AND OPENED ON APRIL 4, 1967, AND WERE EVALUATED AS FOLLOWS:

SET-ASIDE NON-SET-ASIDE REASON FOR PRELIMINARY

LOT NO. 1 LOT NO. 2 DETERMINATION OF "BIDDER TOTAL TOTAL NONRESPONSIVENESS -------- --------- --------- --- ---------------------- CARDINAL $666,081.25 $ 666,081.25 FAILURE TO SUPPLY TRANSPORTATION INDUSTRIES, 1,320,912.50 DATA SHEET WHICH MADE EVALUATION INC. (ALTERNATE/* OF BID IMPOSSIBLE.

(SIC) LIQUIDONICS, 683,175.00 683,175.00 INSUFFICIENT INFORMATION UPON INC. WHICH TO DETERMINE EQUALITY OF (ALTERNATE) TEST STAND OFFERED AND IFB

(SIC) REQUIRED. SUN ELECTRIC 705,128.00 BRAND NAME SUBSTITUTE DETERMINED CORP. TO BE NOT EQUAL TO BRAND NAME

VENDOR ITEMS. HECO DIVISION 732,300.00 FAILED TO SUBMIT BID ON BARKER ROCKFORD NON-SET-ASIDE PORTION AS CO.

REQUIRED BY IFB. AIRCRAFT 744,241.25 ITEM NO. 1 FAILED TO SUBMIT RESPONSIVE BID EQUIPMENT AND NO. 2 ON NON SET-ASIDE PORTION AS TESTING CO. ENTERED, REQUIRED BY IFB AND OMITTED PRICE

NO TOTAL ON ITEM NO. 6 (REVISED

FOR LOT ENGINEERING DRAWINGS MICROFILM

NO. 2. AND EAM CARDS FOR ITEMS 1, 2 AND

4) IN BID ON SET-ASIDE PORTION. AUTO-CONTROL 751,125.00 751,125.00 BRAND NAME SUBSTITUTES INITIALLY LABORATORIES 1,402,400.00 QUESTIONED FOR LACK OF ADEQUATE

(ALTERNATE/* TECHNICAL DESCRIPTION, LATER

(SIC) FOUND THAT SUFFICIENT INFORMATION

WAS AVAILABLE TO MAKE FINDING AS

TO EQUALITY OF SUBSTITUTE VENDOR

ITEMS. LIQUIDONICS, 877,000.00 877,000.00 APPARENTLY RESPONSIVE TO IFB INC. THOUGH NO DETAILED EVALUATION

WAS MADE BECAUSE OF THE WIDE

DISPARITY IN PRICE VIS-A-VIS

CARDINAL BID. AMERICAN 1,747,300.00 APPARENTLY RESPONSIVE TO IFB AVIATION, INC. THOUGH NO EVALUATION WAS MADE

BECAUSE OF THE EXCEPTIONALLY WIDE

DISPARITY IN PRICE VIS-A-VIS

CARDINAL BID.' *FOR THE TOTAL REQUIREMENT

IT IS ADMINISTRATIVELY REPORTED THAT PAGES WERE ERRONEOUSLY INCLUDED IN THE INVITATION FOR QUOTING PRICES ON THE SET-ASIDE AS WELL AS THE NON-SET- ASIDE PORTIONS OF THE PROCUREMENT. IT IS FURTHER REPORTED THAT ALTHOUGH THE NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE APPEARS TO BE CLEAR AND UNAMBIGUOUS, IT IS EVIDENT THAT A NUMBER OF BIDDERS WERE CONFUSED BY THE INCLUSION OF THE PAGE FOR BIDS ON THE SET-ASIDE PORTION, TO THE EXTENT THAT FOUR BIDDERS ENTERED BIDS ON BOTH THE SET ASIDE AND THE NON-SET-ASIDE PAGES. FURTHER, TWO BIDDERS INSERTED BID PRICES ON THE SET-ASIDE PAGE BUT NOT THE NON-SET-ASIDE PAGE; WHEREAS, IF THE INSTRUCTION HAD BEEN CLEARLY UNDERSTOOD, BIDDERS, PRESUMABLY, WOULD HAVE ENTERED PRICES ONLY ON THE NON -SET-ASIDE PAGE.

IN VIEW OF THE CONFUSION CAUSED BY THE INCLUSION OF THE TWO PAGES AND IN ACCORDANCE WITH ASPR 2-404.1 (B) (VIII), IT WAS DETERMINED THAT IN FAIRNESS TO ALL THE BIDDERS AND IN THE BEST INTEREST OF THE GOVERNMENT, THE APPROPRIATE COURSE OF ACTION WAS TO CANCEL THE INVITATION AND READVERTISE THE PROCUREMENT. THE BIDDERS WERE INFORMED OF THE CANCELLATION ON MAY 15, 1967, BY THE CONTRACTING OFFICER.

SHORTLY AFTER THE CANCELLATION, A NUMBER OF THE BIDDERS INDICATED THAT THEY DID NOT CONCUR WITH THE NAVY'S DETERMINATION AS TO THE NONRESPONSIVENESS OF THEIR BIDS OR WITH THE CORRECTNESS OF THE DECISION TO CANCEL AND READVERTISE.

IN ORDER TO GIVE NAVAL AIR SYSTEMS COMMAND TIME TO RECONSIDER THE AFOREMENTIONED DETERMINATIONS, IT WAS DECIDED THAT THE INVITATION FOR BIDS SHOULD BE REINSTATED. HOWEVER, THE INTENDED REINSTATEMENT WAS NEVER ACCOMPLISHED.

IT IS REPORTED THAT NAVAIR HAS RECONSIDERED ITS INITIAL DETERMINATIONS AS TO THE RESPONSIVENESS OF THE BIDS AND HAS DETERMINED THE BID OF LIQUIDONICS, INC., TO BE RESPONSIVE AND THE BIDS OF AIRCRAFT AND SUN TO BE NONRESPONSIVE. IF THE LOW BID OF LIQUIDONICS IS RESPONSIVE, IT APPEARS THAT THE QUESTION AS TO THE RESPONSIVENESS OF THE HIGHER BIDS OF AIRCRAFT AND SUN IS NOT FOR CONSIDERATION.

AIRCRAFT CONTENDS THAT THE LOW BID OF LIQUIDONICS IS AN ALTERNATE BID WITHIN THE MEANING OF PARAGRAPH (2) (II) OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, AND THAT SINCE IT APPEARS THAT LIQUIDONICS IS NOT ENTITLED TO WAIVER OF FIRST ARTICLE APPROVAL, ITS LOW BID IS NOT RESPONSIVE TO THE INVITATION. IT IS OUR VIEW THAT LIQUIDONICS HAS, IN EFFECT, SUBMITTED TWO BIDS BOTH OF WHICH ARE RESPONSIVE TO THE INVITATION. ONE BID IS FOR TEST STANDS BUILT WITH BRAND NAME VENDOR ITEMS AS SET OUT ON THE APPLICABLE DRAWINGS AND THE OTHER FOR TEST STANDS BUILT WITH VENDOR ITEMS EQUAL TO THE BRAND NAME VENDOR ITEMS SET OUT ON THE DRAWINGS. CONSEQUENTLY, WE DO NOT AGREE WITH AIRCRAFT'S CONTENTION THAT LIQUIDONICS' LOW BID IS AN ALTERNATE BID WITHIN THE MEANING OF PARAGRAPH (2) (II) OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS WHICH AUTHORIZES THE SUBMISSION OF AN ALTERNATE BID BASED ON EXCLUDING FIRST ARTICLE APPROVAL IF IDENTICAL OR SIMILAR SUPPLIES HAVE BEEN PREVIOUSLY FURNISHED TO THE GOVERNMENT BY THE BIDDER.

AIRCRAFT ALSO CONTENDS THAT THE LOW BID OF LIQUIDONICS OFFERING TO FURNISH A TEST STAND BUILT WITH VENDOR ITEMS EQUAL TO THE BRAND NAME VENDOR ITEMS SPECIFIED ON THE DRAWINGS MUST BE CONSIDERED NONRESPONSIVE BECAUSE SECTION "QQ" OF THE SCHEDULE PERMITTING THE SUBMISSION OF SUCH A BID WAS NOT MADE A PART OF THE INVITATION. IN SUPPORT OF ITS CONTENTION, AIRCRAFT POINTS OUT THAT THE TABLE OF CONTENTS INCLUDED IN THE SCHEDULE DOES NOT REFER TO OR INCLUDE THAT SECTION. WHILE IT IS TRUE THAT SECTION "QQ" IS NOT INCLUDED IN THE TABLE OF CONTENTS, IT IS NOTED THAT THE "LIST OF BIDDING MATERIAL" ATTACHED TO THE STANDARD FORM 33 SPECIFICALLY STATES THAT "THIS INVITATION FOR BIDS CONSISTS OF THE * * * SCHEDULE WHICH CONSISTS OF THE TABLE OF CONTENTS AND SECTIONS A THROUGH QQ (PAGES 1 TO 67 INCLUSIVE).' WHILE SECTION "QQ" IS ON PAGE 68 AND APPARENTLY THROUGH INADVERTENCE ON THE PART OF THE GOVERNMENT WAS NOT ENTERED ON THE TABLE OF CONTENTS, INASMUCH AS THAT SECTION WAS SPECIFICALLY INCORPORATED IN THE INVITATION BY THE "LIST OF BIDDING MATERIAL" AND SINCE, IN ADDITION, THE SECTION WAS PHYSICALLY INCLUDED IN THE INVITATION, WE THINK THAT ALL BIDDERS WERE ON NOTICE THAT THE SECTION WAS A PART OF THE INVITATION NOTWITHSTANDING THE FACT THAT IT WAS OMITTED ON THE TABLE OF CONTENTS. VIEW THEREOF, WE CANNOT AGREE WITH AIRCRAFT'S CONTENTION THAT THE BID OF LIQUIDONICS OFFERING TO FURNISH A TEST STAND IN ACCORDANCE WITH THE PROVISIONS OF SECTION "QQ" IS A NONRESPONSIVE BID.

ALSO, AIRCRAFT CONTENDS THAT THE COMPONENT PARTS (HEREINAFTER REFERRED TO AS VENDOR ITEMS) OF THE TEST STANDS WHICH LIQUIDONICS PROPOSES TO SUPPLY ARE NOT EQUAL TO THE VENDOR ITEMS LISTED ON THE DRAWINGS WHICH ACCOMPANIED AND WERE INCORPORATED BY REFERENCE IN THE INVITATION. NAVAIR REPORTS THAT AFTER A CAREFUL EXAMINATION OF THE SUBSTITUTE VENDOR ITEMS REFERRED TO BY AIRCRAFT IN ITS LETTER OF AUGUST 17, 1967, IT CONSIDERS THE ITEMS WHICH LIQUIDONICS PROPOSES TO SUPPLY TO BE EQUAL, IN ALL SALIENT, TECHNICAL CHARACTERISTICS, TO THE VENDOR ITEMS LISTED ON THE DRAWINGS REFERENCED IN THE INVITATION. WE HAVE HELD CONSISTENTLY THAT THE FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE TECHNICAL REQUIRMENTS OF THE SPECIFICATION IS ONE FOR EXERCISE BY THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND, WHEN A DETERMINATION IS MADE, IT IS CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. 45 COMP. GEN. 815; 41 COMP. GEN. 124. SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE DETERMINATION WAS EITHER CAPRICIOUS OR ARBITRARY, WE MUST CONCLUDE THAT THE COMPONENT PARTS OFFERED BY LIQUIDONICS ARE EQUAL TO THOSE SPECIFIED.

ITEM 7 OF THE SCHEDULE PROVIDES THAT PUBLICATIONS SHALL BE DELIVERED IN ACCORDANCE WITH ADDENDUM 3 ENTITLED "TECHNICAL MANUAL CONTRACT REQUIREMENT SERIAL NO. 58-67," DATED AUGUST 17, 1966. ADDENDUM 3 STATES IN PERTINENT PART AS FOLLOWS: "/BIDDER SHALL SPECIFY WHETHER THE QUOTATION SUBMITTED IS FOR ALTERNATE A.1./A), A.2./A) OR A.3.).' SUN ELECTRIC CORPORATION QUESTIONS THE RESPONSIVENESS OF THE LOW BID OF LIQUIDONICS BECAUSE LIQUIDONICS FAILED TO STATE WHICH OF THE ALTERNATE METHODS OF PERFORMANCE IT PROPOSED UNDER ITEM 7. SUN CONTENDS THAT THE PHRASE "SHALL SPECIFY" IS MANDATORY AND FAILURE TO COMPLY WITH SUCH A PROVISION RENDERS THE BID NONRESPONSIVE. MOREOVER, SUN CONTENDS THAT THIS FAILURE TO SPECIFY AFFECTED THE PRICE AND WAS, THEREFORE, A MATERIAL DEFECT RENDERING THE LIQUIDONICS BID NONRESPONSIVE.

WITH REGARD TO SUN'S CONTENTIONS CONCERNING THE MANDATORY EFFECT OF THE REQUIREMENT THAT ,/BIDDER SHALL SPECIFY WHETHER THE QUOTATION SUBMITTED IS FOR ALTERNATE A.1./A), A.2./A) OR 3.)," WE BELIEVE THE FOLLOWING LANGUAGE FROM OUR DECISION REPORTED AT 40 COMP. GEN. 321, 324, IS APPLICABLE:

"WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.' APPLYING THESE PRINCIPLES TO THE INVITATION IN THE INSTANT CASE, IT IS OUR OPINION THAT THE FAILURE OF LIQUIDONICS TO STATE WHICH OF THE ALTERNATE METHODS OF PERFORMANCE IT PROPOSED UNDER ITEM 7 WAS A MINOR DEVIATION WHICH MAY BE WAIVED. SEE ASPR 2-405.

IN THE ADMINISTRATIVE REPORT, IT IS STATED THAT LIQUIDONICS SUBMITTED A BID OF $2,000 FOR ITEM 7 OF ITS ALTERNATE BID BUT FAILED TO DESIGNATE WHETHER IT WAS GOING TO SUPPLY ALTERNATE A.1./A), A.2./A) OR A.3./A). IS FURTHER STATED THAT THIS OMISSION IS CONSIDERED TO BE A MINOR DEVIATION IN VIEW OF THE FACT THAT A PRICE FOR MANUALS WAS LISTED AND BECAUSE IT IS IMMATERIAL TO NAVAIR WHICH ALTERNATIVE LIQUIDONICS CHOOSES. IN SUCH A CASE, THE CONTRACTING OFFICER IS REQUIRED EITHER TO GIVE THE BIDDER AN OPPORTUNITY TO CURE THE DEFICIENCY, OR TO WAIVE THE DEFICIENCY, WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. ON THE BASIS OF THE ADMINISTRATIVE STATEMENTS, WECANNOT REGARD THE FAILURE OF LIQUIDONICS TO STATE WHICH OF THE ALTERNATE METHODS OF PERFORMANCE IT PROPOSED UNDER ITEM 7 AS MATERIAL OR CONSEQUENTIAL, NOR DO WE FIND ANY BASIS FOR CONSIDERING THE WAIVER OF THE REQUIREMENT IN THE INVITATION AS PREJUDICIAL TO THE OTHER BIDDERS. MAY ALSO BE POINTED OUT THAT, IN THE ABSENCE OF ANY EXCEPTION BY A BIDDER TO ANY SPECIFICATION REQUIREMENT, THE GOVERNMENT UPON ACCEPTANCE OF THE BID ACQUIRES A LEGALLY ENFORCEABLE RIGHT TO DEMAND PERFORMANCE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. WE HAVE HELD THAT A BID MUST BE REJECTED AS NONRESPONSIVE ONLY IF IT AFFIRMATIVELY SHOWS AN INTENTION NOT TO CONFORM TO THE INVITATION FOR BIDS. SEE B-159434, OCTOBER 14, 1966. LIQUIDONICS SUBMITTED A BID OF $2,000 FOR ITEM 7 OF ITS ALTERNATE BID AND TOOK NO EXCEPTION TO THE PROVISION OF THE INVITATION WHICH REQUIRED BIDDERS TO SUPPLY ONE OF THE THREE ALTERNATES LISTED IN ITEM 7. ACCORDINGLY, LIQUIDONICS HAS COMMITTED ITSELF IN ADVANCE TO SUPPLY, AT ITS PRICE FOR ITEM 7 OF $2,000, ONE OF THE THREE EQUALLY APPROVED ALTERNATES LISTED IN ITEM 7.

INASMUCH AS LIQUIDONICS SUBMITTED THE LOWEST RESPONSIVE BID, THE SOLE QUESTION REMAINING FOR DETERMINATION IS WHETHER, UNDER THE CIRCUMSTANCES, THE INVITATION SHOULD BE REINSTATED AND THE CONTRACT AWARDED TO LIQUIDONICS AS ADMINISTRATIVELY RECOMMENDED.

THE COURT OF CLAIMS STATED IN THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT. CL. 699, 719:

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

THIS RULE IS RECOGNIZED IN PARAGRAPH 2-404.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH STATES:

"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. * * *"

OUR OFFICE HAS RECOGNIZED THAT THE ADMINISTRATIVE AUTHORITY TO REJECT ANY AND ALL BIDS AND READVERTISE IS EXTREMELY BROAD AND ORDINARILY WE WILL NOT QUESTION SUCH ACTION. HOWEVER, IN CIRCUMSTANCES IN WHICH NO COGENT OR COMPELLING REASON EXISTS FOR REJECTING ALL BIDS, WE HAVE HELD SUCH REJECTION TO BE IMPROPER. 39 COMP. GEN. 396. IN THE INSTANT CASE, INASMUCH AS AIRCRAFT AND ONE OTHER BIDDER WERE THE ONLY BIDDERS THAT FAILED TO BID ON THE NON-SET ASIDE PORTION OF THE PROCUREMENT AND SINCE NEITHER OF THE BIDDERS SUBMITTED THE LOWEST BID RECEIVED, IT IS OUR OPINION THAT NO BIDDER WAS PREJUDICED BY THE GOVERNMENT'S ERRONEOUS INCLUSION OF A PAGE IN THE INVITATION SOLICITING BIDS ON THE SET-ASIDE PORTION OF THE PROCUREMENT AND, THEREFORE, THE CANCELLATION OF THE INVITATION WAS NOT JUSTIFIED. IN THE CIRCUMSTANCES, WE THINK THAT THE INVITATION SHOULD BE REINSTATED AND AWARD MADE TO LIQUIDONICS, THE LOWEST RESPONSIVE BIDDER. SEE 45 COMP. GEN. 357.