B-163592, AUG. 9, 1968

B-163592: Aug 9, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15. THE REQUEST FOR PROPOSALS WAS DIVIDED IN TWO TRIM SIZE CATEGORIES AND WAS WRITTEN SO THAT MULTIPLE CONTRACTS COULD BE AWARDED. THE LOW BIDDER WAS ALLOWED TO REJECT ANY OFFERING IF IT WAS UNABLE TO MEET THE SHIPPING SCHEDULE. FIVE BIDS WERE RECEIVED BY THE GPO. IT IS REPORTED THAT THE LOWEST BIDDER. WOULD RESULT IN THE GOVERNMENT HAVING TO PAY EXCESSIVE PRICES FOR MANY OF THE ORDERS IF THEY WERE ACCEPTED BY THE OVERALL LOW BIDDER IN THE PROGRAM. THE PROCUREMENT WAS READVERTISED ON A "PAR VALUE" BASIS AND WAS FURNISHED TO THE SAME LIST OF PROSPECTIVE BIDDERS WHO WERE REQUESTED TO SUBMIT BIDS UNDER THE ORIGINAL ADVERTISEMENT. YOUR FIRM'S DECIMAL POINT ERROR WOULD HAVE BEEN TREATED AS AN OBVIOUS MISTAKE IN BID OF A CLERICAL NATURE AND.

B-163592, AUG. 9, 1968

TO GOODWAY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1968, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO A BIDDER OTHER THAN YOUR FIRM UNDER PROGRAM NO. 214, BID AND ACCEPTANCE NO. 49524, ISSUED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE (GPO), WASHINGTON, D.C.

GPO REQUESTED PROPOSALS UNDER PROGRAM 214 FOR THE COMPLETE PRINTING AND BINDING SERVICES NECESSARY FOR THE PRODUCTION AND SHIPMENT OF CERTAIN TECHNICAL HANDBOOKS, AND CHANGES THERETO DURING THE PERIOD BEGINNING MARCH 1, 1968, AND ENDING FEBRUARY 28, 1969. THE REQUEST FOR PROPOSALS WAS DIVIDED IN TWO TRIM SIZE CATEGORIES AND WAS WRITTEN SO THAT MULTIPLE CONTRACTS COULD BE AWARDED. THE GOVERNMENT AGREED TO PLACE ALL ORDERS WITH THE LOW BIDDER, AND THE LOW BIDDER WAS ALLOWED TO REJECT ANY OFFERING IF IT WAS UNABLE TO MEET THE SHIPPING SCHEDULE.

FIVE BIDS WERE RECEIVED BY THE GPO. IT IS REPORTED THAT THE LOWEST BIDDER, YOUR FIRM, AND THE SECOND LOWEST BIDDER, BRACELAND BROTHERS, INC., BOTH SUBMITTED PRICES WHICH, IF ACCEPTED, WOULD RESULT IN THE GOVERNMENT HAVING TO PAY EXCESSIVE PRICES FOR MANY OF THE ORDERS IF THEY WERE ACCEPTED BY THE OVERALL LOW BIDDER IN THE PROGRAM. AS A RESULT, THE GPO REJECTED ALL BIDS. THE PROCUREMENT WAS READVERTISED ON A "PAR VALUE" BASIS AND WAS FURNISHED TO THE SAME LIST OF PROSPECTIVE BIDDERS WHO WERE REQUESTED TO SUBMIT BIDS UNDER THE ORIGINAL ADVERTISEMENT. GPO ADVISES US THAT IT CONSIDERED THAT THE "PAR VALUE" METHOD WOULD RESULT IN "PLUS OR MINUS" QUOTATIONS WHICH WOULD BE EQUITABLE AND FAIR TO THE BIDDERS AS WELL AS TO THE GOVERNMENT.

BY LETTER DATED FEBRUARY 15, 1968, YOU ADVISED GPO THAT YOUR FIRM HAD MADE A DECIMAL POINT ERROR IN INSERTING YOUR BID PRICE FOR FURNISHING 8- 1/2 BY 11 INCHES WHITE OFFSET BOOK PAPER UNDER LINE 1, ITEM XXVIII, CATEGORY II, OF THE ORIGINAL ADVERTISEMENT. YOU REQUESTED THAT THE PRICE OF THIS ITEM BE CHANGED TO READ $0.195 PER HUNDRED INSTEAD OF $1.95 PER HUNDRED. IN THIS CONNECTION, GPO STATES THAT IF THE CONTRACTING OFFICER HAD NOT REJECTED ALL BIDS, BUT HAD CONSIDERED THEM FOR PURPOSES OF MAKING AN AWARD, YOUR FIRM'S DECIMAL POINT ERROR WOULD HAVE BEEN TREATED AS AN OBVIOUS MISTAKE IN BID OF A CLERICAL NATURE AND, AS SUCH, WOULD HAVE BEEN CORRECTED. IN ITS REPORT TO OUR OFFICE, GPO STATES THAT SINCE ALL BIDS WERE REJECTED, THE MISTAKE IN YOUR BID HAS BECOME ACADEMIC. WE ARE OF THE SAME OPINION.

IN YOUR LETTER OF MAY 21, 1968, TO THE GPO, YOU, IN EFFECT, QUESTION WHETHER A PROPER BASIS EXISTED FOR THE CANCELLATION OF THE ORIGINAL ADVERTISEMENT AND THE READVERTISEMENT ON A "PAR ALUE" BASIS.

PROSPECTIVE BIDDERS WERE ADVISED ON PAGE 31 OF THE ORIGINAL ADVERTISEMENT AS FOLLOWS: "THE PUBLIC PRINTER RESERVES THE RIGHT TO REJECT ANY BID IN EITHER CATEGORY THAT CONTAINS PRICES FOR INDIVIDUAL ITEMS OF PRODUCTION (WHETHER OR NOT SUCH ITEMS ARE INCLUDED IN THE BASIS OF AWARD), THAT ARE INCONSISTENT OR UNREALISTIC IN REGARD TO OTHER PRICES IN THE SAME BID OR TO GOVERNMENT PRINTING OFFICE PRICES FOR THE SAME OPERATION IF, IN HIS OPINION, SUCH ACTION WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT.'

IT CONSISTENTLY HAS BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPART ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED. SEE O BRIEN V CARNEY, 6 F.SUPP. 761 AND COLORADO PAV. CO. V MURPHY, 78 F.28. FURTHER, THE QUESTION WHETHER ALL BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION. WHERE, AS HERE, IT IS SHOWN THAT THE PURPOSE OF SUCH ACTIONS IS TO OBTAIN FOR THE GOVERNMENT THE ADVANTAGE OF MORE COMPETITIVE AND REALISTIC BIDDING, AS DETERMINED BY THE GOVERNMENT'S DULY CONSTITUTED AGENTS, NO LEGAL BASIS EXISTS FOR OBJECTING TO SUCH ACTIONS. SEE 17 COMP. GEN. 554.

WE ARE AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITIOR'S PRICES IS A SERIOUS MATTERAND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED 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 INTERESTS OF THE GOVERNMENT WILL BE BEST SERVED THEREBY. COMPARE 38 COMP. GEN. 235 AND 39 COMP. GEN. 86. IN THIS INSTANCE, GPO HAS DETERMINED AFTER DUE CONSIDERATION THAT IF THE PRICES QUOTED BY YOUR FIRM AND THE NEXT LOWEST BIDDER WERE ACCEPTED, IT WOULD RESULT IN EXCESSIVE COSTS TO THE GOVERNMENT.