B-163575, JUL. 12, 1968

B-163575, JUL. 12, 1968

TO GENERAL HEDLUND:

WE HAVE A LETTER DATED MAY 17, 1968, FROM YOUR ASSISTANT COUNSEL, REQUESTING CLARIFICATION OF A STATEMENT IN OUR DECISION B-163575, MARCH 26, 1968, TO EVANS COOPERAGE CO., INC., CONCERNING ITS PROTEST AGAINST REJECTION OF ITS BID ON ITEM 15 OF IFB NO. DSA-640-68-B-0072. THE STATEMENT IN QUESTION WAS AS FOLLOWS:

"IN ADDITION TO THE GROUNDS STATED BY THE PROCURING AGENCY FOR REJECTION OF YOUR BID, WE BELIEVE THAT THE ITEM 15 BID WAS ALSO BARRED FROM CONSIDERATION BECAUSE IT WAS SUBMITTED ONLY BY TELEGRAM CONTRARY TO THE EXPRESS PROVISIONS OF ARTICLE 5 (B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS THAT TELEGRAPHIC OFFERS WOULD NOT BE CONSIDERED UNLESS AUTHORIZED BY THE SOLICITATION. ALTHOUGH THE BID WAS INCLUDED IN A TELEGRAM WHICH CONTAINED MODIFICATIONS OF YOUR WRITTEN BIDS ON OTHER ITEMS, IT CANNOT BE CONSIDERED AS A PERMITTED TELEGRAPHIC MODIFICATION SINCE THERE WAS NO WRITTEN BID ON ITEM 15 WHICH COULD BE MODIFIED, AND SO FAR AS THAT ITEM WAS CONCERNED IT WAS A COMPLETELY NEW BID ENTIRELY INDEPENDENT OF ANY PART OF YOUR WRITTEN BID.' IN HIS LETTER YOUR ASSISTANT COUNSEL STATES:

"ALTHOUGH THIS DECISION DID NOT SPECIFICALLY OVERRULE 39 COMP. GEN. 163 AND B-160131, 7 OCTOBER 1966, IT DOES ANNOUNCE A CONTRARY RULE. THIS AGENCY, THEREFORE, IS PLANNING TO CIRCULATE THE DECISION TO ITS FIELD ACTIVITIES AS THE RULE WHICH SHOULD NOW BE FOLLOWED. BEFORE DOING SO, HOWEVER, WE WOULD LIKE TO BE SURE THAT THIS IS THE RESULT INTENDED. CLARIFICATION WOULD BE APPRECIATED.'

PLEASE BE ADVISED THAT THE ABOVE-QUOTED PORTION OF OUR DECISION, B 163575, WAS NOT INTENDED TO OVERRULE 39 COMP. GEN. 163 AND B-160131 OR TO PRESCRIBE OR ESTABLISH ANY DIFFERENT RULE OR PROCEDURE THAN IS SET OUT IN THOSE DECISIONS. IN VIEW THEREOF, AND SINCE THE QUOTED PORTION OF B- 163575 WAS NOT ESSENTIAL TO THE CONCLUSION REACHED IN THAT DECISION, IT SHOULD BE REGARDED AS DICTUM AND SHOULD NOT BE FOLLOWED OR APPLIED IN FUTURE PROCUREMENTS.