B-164125, JUN. 28, 1968

B-164125: Jun 28, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED APRIL 24 AND 26. THE INVITATION WAS ISSUED ON FEBRUARY 16. AWARD WILL BE MADE * * * TO THE BIDDER/OFFEROR WHOSE BID OR PROPOSAL WILL RESULT IN THE LOWEST ULTIMATE COST TO THE GOVERNMENT AFTER PRICE AND OTHER FACTORS. ARE CONSIDERED. THE LOGISTICS AND OTHER IMPACT COST FACTORS THAT WILL BE CONSIDERED IN THE EVALUATION OF BIDS/PROPOSALS UNDER THIS SOLICITATION ARE SET FORTH * * * BELOW AND WILL BE ADDED TO THE BASIC QUOTED PRICE. * * * IF REAL-COST DATA SUBMISSIONS DO NOT COMPLY WITH THE TERMS OF THE SOLICITATION. NO FURTHER CONSIDERATION WILL BE GIVEN TO THAT BID * * *. "2. FOR THE PURPOSE OF THE BASIS OF AWARD * * * THE FOLLOWING WILL BE FURNISHED AS SEPARATE DOCUMENTS CONCURRENTLY WITH THE BID/PROPOSAL: "A.

B-164125, JUN. 28, 1968

TO WINSLOW TELE-TRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED APRIL 24 AND 26, 1968, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. F41608-68-B- 0903, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE, PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS. YOU REQUEST THAT THE CANCELLATION OF THE INVITATION BE RESCINDED AND THAT AN AWARD BE MADE TO YOUR COMPANY AS THE ONLY RESPONSIVE BIDDER.

THE INVITATION WAS ISSUED ON FEBRUARY 16, 1968, AND REQUESTED BIDS FOR THE FURNISHING OF 115 SIGNAL GENERATORS, TOGETHER WITH APPLICABLE SPARE PARTS AND DATA. YOU STATE THAT THE INVITATION REPRESENTED AN AUCTION-TYPE PROCUREMENT SINCE IT INCLUDED PREVIOUS PRICES AND PROCUREMENT INFORMATION.

THE INVITATION REQUIRED THAT BIDS BE FURNISHED ON THE BASIS OF FIRST ARTICLE TESTING AND SHOULD INCLUDE REAL COST DATA FOR USE IN THE EVALUATION OF BIDS AS SET FORTH IN PART XVI -- BASIS FOR AWARD, WHICH PROVIDED IN PART AS FOLLOWS:

"1. BASIS FOR AWARD. AWARD WILL BE MADE * * * TO THE BIDDER/OFFEROR WHOSE BID OR PROPOSAL WILL RESULT IN THE LOWEST ULTIMATE COST TO THE GOVERNMENT AFTER PRICE AND OTHER FACTORS, INCLUDING LOGISTICS COST, ARE CONSIDERED. THE LOGISTICS AND OTHER IMPACT COST FACTORS THAT WILL BE CONSIDERED IN THE EVALUATION OF BIDS/PROPOSALS UNDER THIS SOLICITATION ARE SET FORTH * * * BELOW AND WILL BE ADDED TO THE BASIC QUOTED PRICE. * * * IF REAL-COST DATA SUBMISSIONS DO NOT COMPLY WITH THE TERMS OF THE SOLICITATION, NO FURTHER CONSIDERATION WILL BE GIVEN TO THAT BID * * *.

"2. EVALUATION DATA. FOR THE PURPOSE OF THE BASIS OF AWARD * * * THE FOLLOWING WILL BE FURNISHED AS SEPARATE DOCUMENTS CONCURRENTLY WITH THE BID/PROPOSAL:

"A. A LIST IN FIVE COPIES OF ALL PARTS AND BULK ITEMS TO BE USED IN EACH END ITEM AND PECULIAR AGE. * * *.

"B. AN 80-COLUMN PCE CARD FOR EACH PART NUMBER * * *.

"C. DRAWINGS, SKETCHES, SPECIFICATIONS, AND TECHNICAL DESCRIPTIONS SUITABLE FOR EVALUATION AND DETERMINATION OF THE VARIABLE LOGISTICS COST FACTOR.

"D. THREE COPIES OF A NUMERICAL MASTER INDEX OF PART NUMBERS * * *.

"E. A LINE-ITEM LISTING OF EACH PECULIAR AND NONSTANDARD ITEM OF FIELD AND DEPOT AGE * * *.

"F. A LIST OF ITEMS OF PECULIAR AGE PREVIOUSLY PROCURED AND IN THE AF INVENTORY TO MAINTAIN AND OVERHAUL THE END ITEM. * * *.'

BIDS WERE OPENED ON MARCH 18, 1968, AND YOUR COMPANY SUBMITTED THE SIXTH LOW BID. SEVEN BIDS WERE RECEIVED, SIX OF WHICH DID NOT INCLUDE ANY REAL COST DATA REQUIRED UNDER PART XVI ABOVE. THE REPORT SUBMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE ADVISES THAT YOUR COMPANY FAILED TO SUBMIT WITH ITS BID THE REAL COST DATA REQUIRED BY PARAGRAPHS 2.A., B., C., E. AND F. OF PART XVI, ABOVE, AND THAT WITHOUT THIS DATA THE EVALUATION OF YOUR BID UNDER THE TERMS OF THE INVITATION WAS IMPOSSIBLE AND REQUIRED THE REJECTION OF YOUR BID UNDER PARAGRAPH 1 OF PART XVI.

SINCE THE CONTRACTING OFFICER DETERMINED THAT NO RESPONSIVE BIDS WERE RECEIVED UNDER THE INVITATION, HE REJECTED ALL BIDS AND CANCELED THE INVITATION. BY LETTER DATED APRIL 29, 1968, YOU WERE ADVISED THAT ALL BIDS RECEIVED WERE FOUND TO BE UNACCEPTABLE AND WERE REJECTED. YOU WERE FURTHER ADVISED THAT YOUR COMPANY WOULD BE SOLICITED IF THIS REQUIREMENT IS READVERTISED.

ALTHOUGH YOU CONTEND THAT YOUR COMPANY SUBMITTED THE ONLY RESPONSIVE BID, SUCH IS NOT THE CASE. YOUR FAILURE TO SUBMIT THE REAL COST DATA REQUIRED BY PARAGRAPHS 2.A., B., C., E. AND F. OF PART XVI MADE EVALUATION OF YOUR BID UNDER THE TERMS OF THE INVITATION IMPOSSIBLE AND RENDERED YOUR BID NONRESPONSIVE UNDER THE TERMS OF PART XVI. THE FACT THAT YOU OFFERED TO FURNISH AN ITEM IDENTICAL TO THAT WHICH YOU ARE REQUIRED TO DELIVER UNDER AN EXISTING AIR FORCE CONTRACT DID NOT EXCUSE YOU FROM PROVIDING THE REAL COST DATA REQUIRED TO BE FURNISHED UNDER THE PENALTY OF NONRESPONSIVENESS. WE ARE ADVISED THAT AT THE TIME OF BID OPENING, YOU HAD NOT DELIVERED ANY END ITEM UNDER THE EXISTING CONTRACT AND HAD NOT RECEIVED A FIRST ARTICLE APPROVAL THEREUNDER.

SINCE NO RESPONSIVE BIDS WERE RECEIVED, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO REJECT ALL BIDS. SEE ASPR 2-404.1 (B) (VIII). A NEW INVITATION NO. F41608-68-B-1568 WAS ISSUED FOR THIS REQUIREMENT ON MAY 2, 1968, WHICH DOES NOT REQUIRE THE SUBMISSION OF REAL COST DATA. WITH RESPECT TO YOUR COMPLAINT THAT THE ORIGINAL INVITATION DISCLOSED PREVIOUS PRICES PAID BY THE GOVERNMENT FOR THIS EQUIPMENT, WE ARE ADVISED THAT THIS INFORMATION WAS INCLUDED THROUGH INADVERTANCE AND IS NOT INCLUDED IN THE NEW INVITATION.

10 U.S.C. 2305 (C) PROVIDES FOR THE REJECTION OF ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE GOVERNMENT'S INTEREST. IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ONE OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. SEE 37 COMP. GEN. 760, 761; 39 ID. 86.

WE ARE AWARE THAT THE REJECTION OF BIDS AFTER OPENING AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICE IS A SERIOUS MATTER AND SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS. SEE 39 COMP. GEN. 396. HOWEVER, IN THIS CASE, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO CANCEL THE INVITATION SINCE NO RESPONSIVE BIDS WERE RECEIVED.

WE, THEREFORE, FIND NO LEGAL OBJECTION TO THE CANCELLATION OF THE ORIGINAL INVITATION AND THE SUBSEQUENT RESOLICITATION OF THE PROCUREMENT.