B-163753, JUL. 8, 1968

B-163753, JUL. 8, 1968

TO BRISTOL DYNAMICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1968, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 28, 1968, B-163753, TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION. THE DECISION RESULTED FROM THE PROTEST OF YOUR CORPORATION AGAINST THE ACTION OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, IN REJECTING YOUR FIRM'S "ALL OR NONE" BID SUBMITTED IN RESPONSE TO SOLICITATION NO. FPNTN-E2-56503 -A-11-28-67.

IN THE DECISION OF MAY 28, 1968, WE HELD THAT THE SUBJECT SOLICITATION WAS DEFECTIVE SINCE IT DID NOT CONTAIN THE "ALL OR NONE" BID EVALUATION CLAUSE PRESCRIBED BY PARAGRAPH 5A-2.201-73 OF THE GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATION (GSPR). WE ALSO HELD THAT THE FAILURE TO COMPLY WITH GSPR CREATED AN AMBIGUITY CASTING SERIOUS DOUBT ON THE VALIDITY OF THE SOLICITATION AND THE RESULTING CONTRACTS. WE STATED THEREIN, HOWEVER, THAT SINCE THE RECORD INDICATES THAT THE THREE CONTRACTORS, WHICH WERE AWARDED THE ITEMS IN QUESTION, HAVE ALREADY DELIVERED SOME OF THE REQUIRED STEEL PUNCHES AND, IN ANTICIPATION OF THE RECEIPT OF FUTURE ORDERS, HAVE ALREADY MANUFACTURED A SUBSTANTIAL NUMBER OF STEEL PUNCHES, IT DID NOT APPEAR TO BE IN THE GOVERNMENT'S INTEREST TO CANCEL THE CONTRACT AT THIS TIME.

YOU REQUEST RECONSIDERATION BECAUSE YOU SAY YOU ACTED IN GOOD FAITH IN SUBMITTING YOUR BID IN ACCORDANCE WITH THE TERMS OF THE SOLICITATION. YOU STATE THAT THE SOLICITATION CONTEMPLATED A REQUIREMENTS-TYPE CONTRACT BASED ON THE GOVERNMENT'S ESTIMATED MONTHLY REQUIREMENTS RUNNING THROUGH FEBRUARY 28, 1969; THAT 9 MONTHS OF SUCH PERIOD REMAINED AS OF THE DATE OF OUR DECISION; AND THAT BY AWARDING A CONTRACT TO BRISTOL FOR THE REMAINING PERIOD A WRONG TO YOUR FIRM CAN BE PARTIALLY RIGHTED WITHOUT UNDUE HARDSHIP TO THE OTHER BIDDERS.

IN ANY CASE IN WHICH IT IS DETERMINED IN THIS OFFICE THAT A PROTEST IS VALID, WE ARE CONFRONTED WITH THE QUESTION AS TO THE ACTION TO BE TAKEN, HAVING REGARD FOR THE INTERESTS OF THE GOVERNMENT, THE PROTESTING BIDDER AND THE OTHER PARTY THAT MAY BE AFFECTED BY THE OUTCOME OF THE PROTEST. WHENEVER OUR DECISION CAN BE MADE PRIOR TO AWARD, WE WILL INSTRUCT THE CONTRACTING AGENCY AS TO THE CORRECT ACTION TO BE TAKEN DEPENDING UPON THE CIRCUMSTANCES IN THE PARTICULAR CASE. HOWEVER, IF, FOR ANY REASON, WE ARE UNABLE TO REACH A DECISION UNTIL AFTER THE CONTRACT HAS BEEN IMPROPERLY AWARDED THE PROBLEM IS CONSIDERABLY MORE DIFFICULT BECAUSE IT IS GENERALLY COMPLICATED FROM A PRACTICAL STANDPOINT BY THE FACT THAT THE BIDDER THAT RECEIVED THE AWARD HAS MADE COMMITMENTS BASED ON THE AWARD AND IS PROCEEDING WITH PERFORMANCE OF THE AWARDED CONTRACT. FURTHER, THERE IS FOR CONSIDERATION THE LINE OF COURT DECISIONS WHICH DECLARE THAT THE STATUTES REGULATING THE CONTRACT PROCEDURES OF OFFICERS OF THE GOVERNMENT WERE ENACTED SOLELY FOR THE BENEFIT OF THE GOVERNMENT AND CONFER NO ENFORCEABLE RIGHTS UPON UNSUCCESSFUL BIDDERS. THEREFORE, WHEN THERE IS NOTHING TO INDICATE THAT THE AWARD WAS NOT MADE IN GOOD FAITH, IT IS GENERALLY IN THE BEST INTERESTS OF THE GOVERNMENT NOT TO REQUIRE CANCELLATION.

WE ARE NOT UNMINDFUL THAT AN UNSUCCESSFUL BIDDER WILL THEREFORE SOMETIMES DERIVE NO MATERIAL BENEFIT FROM A SUCCESSFUL PROTEST. HOWEVER, EVEN IN THOSE CASES WE BRING THE IMPROPER ACTION INVOLVED TO THE ATTENTION OF THE HEAD OF THE CONTRACTING AGENCY IN ORDER THAT RECURRENCES MAY BE AVOIDED. CONSEQUENTLY, WHILE THE BID PROTEST PROCEDURE MAY NOT AFFORD AN ADEQUATE REMEDY IN EVERY CASE WE FEEL THAT THE AVAILABILITY OF THE PROCEDURE SERVES A SALUTARY PURPOSE IN HELPING TO MAINTAIN PROPER CONTRACTING PROCEDURES ON A GOVERNMENT-WIDE BASIS.

UNDER THE CIRCUMSTANCES WE REGRET THAT WE CANNOT COMPLY WITH YOUR REQUEST THAT THE CONTRACTS IN QUESTION BE CANCELED AND AWARD BE MADE TO YOUR FIRM.