B-166621, JUL. 10, 1969

B-166621: Jul 10, 1969

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GOLDMAN CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 5. AN ADVERTISEMENT WAS ISSUED SOLICITING BIDS. - "ANY AWARD UNDER THIS ADVERTISEMENT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT. WHEN THE BIDS WERE OPENED IT WAS DETERMINED THAT YOUR FIRM HAD SUBMITTED THE LOW RESPONSIVE BID OF $124. 587 RENT PER ANNUM FOR THE BASIC TERM WAS SUBMITTED BY S. THE POST OFFICE DEPARTMENT DETERMINED THAT BOTH BIDS WERE TOO HIGH. THEY WERE BOTH REJECTED. THIS DETERMINATION WAS BASED ON THE DEPARTMENT'S GENERATED ESTIMATE. A SECOND ADVERTISEMENT WAS ISSUED ON JANUARY 10. USING THE SAME CONTRACT FORM AND CONTAINING A STATEMENT AT THE BOTTOM OF THE FORM WHICH STATED: "THIS IS A READVERTISEMENT.

B-166621, JUL. 10, 1969

TO PERRY J. GOLDMAN CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN ADVERTISEMENT FOR BIDS TO LEASE, ISSUED BY THE POST OFFICE DEPARTMENT ON JANUARY 10, 1969, FOR AN AIR MAIL FACILITY AT PHILADELPHIA INTERNATIONAL AIRPORT.

ON DECEMBER 2, 1968, AN ADVERTISEMENT WAS ISSUED SOLICITING BIDS, TO BE OPENED ON JANUARY 2, 1969, FOR THE FURNISHING OF SPACE FOR POSTAL PURPOSES AT AN ANNUAL RENTAL WITH A BASIC LEASE TERM OF FIVE (5) YEARS WITH ONE RENEWAL OPTION TO RUN UNTIL DECEMBER 31, 1976, AND FOUR ADDITIONAL ONE YEAR OPTIONS. PARAGRAPH 5 OF THIS ADVERTISEMENT ADVISED BIDDERS THAT--- "ANY AWARD UNDER THIS ADVERTISEMENT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE POST OFFICE DEPARTMENT RESERVES THE RIGHT AFTER BID OPENING TO NEGOTIATE WITH THE LOW BIDDER AS TO ANY OR ALL RENTAL RATES, OR OTHER TERMS AND CONDITIONS OF THE BID, WITHOUT WAIVING ITS RIGHT TO ACCEPT THE BID AS SUBMITTED, OR TO REJECT ANY OR ALL BIDS.'

WHEN THE BIDS WERE OPENED IT WAS DETERMINED THAT YOUR FIRM HAD SUBMITTED THE LOW RESPONSIVE BID OF $124,600 RENT PER ANNUM FOR THE BASIC TERM. THE SECOND LOW BID IN THE AMOUNT OF $162,587 RENT PER ANNUM FOR THE BASIC TERM WAS SUBMITTED BY S. A. AND H. A. BERGER. THE POST OFFICE DEPARTMENT DETERMINED THAT BOTH BIDS WERE TOO HIGH, AND THEY WERE BOTH REJECTED. THIS DETERMINATION WAS BASED ON THE DEPARTMENT'S GENERATED ESTIMATE.

A SECOND ADVERTISEMENT WAS ISSUED ON JANUARY 10, 1969, USING THE SAME CONTRACT FORM AND CONTAINING A STATEMENT AT THE BOTTOM OF THE FORM WHICH STATED: "THIS IS A READVERTISEMENT. ALL BIDS RECEIVED UNDER THE ADVERTISEMENT CLOSING JANUARY 2, 1969 HAVE BEEN REJECTED.'

THIS READVERTISEMENT INCLUDED AN ATTACHED LETTER WHICH STATED, IN PART, THAT: "IT HAS BEEN DECIDED TO REJECT ALL BIDS RECEIVED AS A RESULT OF THE ADVERTISEMENT POSTED ON THE ABOVE FACILITY, AND TO READVERTISE FOR A FURTHER PERIOD, WITH A CLOSING DATE OF JANUARY 20, 1969. AS INFORMATION THE LOW BID SUBMITTED WAS AT $124,600, PER ANNUM, WHICH, IN MY OPINION, WAS TOO HIGH.'

THREE BIDS WERE RECEIVED IN RESPONSE TO THE ADVERTISEMENT. THE LOW RESPONSIVE BID OF $118,600 WAS SUBMITTED BY RICHARD B. AND MARCIA F. RYON, WHILE YOUR FIRM'S BID OF $122,900 WAS SECOND LOW. SUBSEQUENT NEGOTIATIONS WITH THE LOW BIDDER RESULTED IN A REDUCTION OF ANNUAL RENT FOR THE BASIC TERM FROM $118,600 PER ANNUM TO $116,000 PER ANNUM. AWARD WAS MADE ON MARCH 21, 1969, AND PERFORMANCE UNDER THE CONTRACT HAS COMMENCED.

IT IS YOUR CONTENTION THAT THERE WERE NO IRREGULARITIES IN THE BIDDING UNDER THE FIRST ADVERTISEMENT AND YOUR FIRM, AS THE LOW BIDDER, SHOULD HAVE RECEIVED THE AWARD UNDER THAT ADVERTISEMENT. FURTHER, YOU STATE THAT YOUR FIRM WAS TREATED UNFAIRLY BY THE REVELATION OF YOUR ORIGINAL BID PRICE IN THE LETTER ATTACHED UNDER THE SECOND ADVERTISEMENT.

IN OUR CONSIDERATION OF THE MERITS OF YOUR PROTEST WE MUST FIRST POINT OUT THAT A LOW BIDDER DOES NOT HAVE A VESTED RIGHT TO THE AWARD OF A GOVERNMENT CONTRACT. 26 COMP. GEN. 49, 50; B-164229, JULY 30, 1968. SEE ALSO 37 COMP. GEN. 760; 48 ID. 19, 21; B-164520, SEPTEMBER 24, 1968. EVEN IN THOSE SITUATIONS WHERE THE GOVERNMENT IS, BY STATUTE, REQUIRED TO MAKE THE AWARD TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER, THE CONTRACTING OFFICER MAY EITHER CANCEL THE INVITATION, OR REJECT ANY OR ALL BIDS, IF HE MAKES A WRITTEN DETERMINATION THAT THE PRICE OR PRICES ARE UNREASONABLE. SEE SECTIONS 1-2.404-2 (C) AND 1 2.404-1 (B) (5) OF THE FEDERAL PROCUREMENT REGULATIONS. THE CONTRACTING OFFICER MADE SUCH A WRITTEN DETERMINATION IN THE PRESENT CASE. THIS DETERMINATION WAS BASED ON THE DEPARTMENT'S ESTIMATE, AND THE FACT THAT TWO LOWER BIDS WERE RECEIVED UNDER THE SECOND ADVERTISEMENT LENDS SOME VALIDITY TO THE DETERMINATION, ALTHOUGH BOTH BIDS WERE CONSIDERABLY HIGHER THAN THE DEPARTMENT'S ESTIMATE.

IT IS NOTED, HOWEVER, THAT BOTH OF THE PRESENT ADVERTISEMENTS WERE ISSUED UNDER AUTHORITY OF 39 U.S.C. 2102, WHICH STATES, IN PART, THAT: "/A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW THE POSTMASTER GENERAL MAY LEASE, ON SUCH TERMS AS HE DEEMS APPROPRIATE, REAL PROPERTY NECESSARY IN THE CONDUCT OF THE AFFAIRS OF THE DEPARTMENT.'

WE HAVE HELD THAT STATUTES GRANTING AUTHORITY TO NEGOTIATE CONTRACTS WITHOUT ADVERTISING, SUCH AS 39 U.S.C. 2102, COMPREHEND THE LESSER AUTHORITY TO UTILIZE ADVERTISING TO THE EXTENT ADMINISTRATIVELY DEEMED APPROPRIATE IN MAKING CONTRACTS THEREUNDER, WITHOUT RESTRICTING FINAL ADMINISTRATIVE DETERMINATION OF THE BIDDER TO WHOM THE CONTRACT SHOULD BE AWARDED. 20 COMP. GEN. 194; B-165310, NOVEMBER 21, 1968; B-150660, MARCH 29, 1963; B-159239, AUGUST 2, 1966. THUS, IN SUCH CASES AN ADMINISTRATIVE ELECTION TO ADVERTISE, RATHER THAN TO NEGOTIATE, DOES NOT NECESSARILY REQUIRE AN AWARD TO THE LOWEST BIDDER REGARDLESS OF ANY OR ALL OTHER CONSIDERATIONS.

IN VIEW THEREOF, AND SINCE THE SOLICITATION OF BIDS UNDER THE PRESENT PROCUREMENT CONTAINED AN EXPRESS RESERVATION OF THE RIGHT TO REJECT ANY AND ALL BIDS, WE SEE NO VALID BASIS FOR IMPOSING ON THE DEPARTMENT ANY OBLIGATION TO ACCEPT THE LOWEST, OR ANY OTHER, OF THE BIDS RECEIVED.

CONCERNING YOUR OBJECTION TO THE INCLUSION IN THE SECOND ADVERTISEMENT OF THE AMOUNT OF YOUR BID UNDER THE ORIGINAL ADVERTISEMENT, WE ARE ADVISED THAT THE AMOUNT OF YOUR BID UNDER THE FIRST ADVERTISEMENT IS PUBLIC IN NATURE AND COULD EASILY HAVE BEEN OBTAINED BY ANYONE DESIRING THIS INFORMATION. ALTHOUGH THE POST OFFICE DEPARTMENT HAS ADVISED ITS REGIONAL OFFICES THAT IT IS NOT THE DEPARTMENT'S POLICY TO INCLUDE SUCH DATA IN READVERTISEMENTS, AND PRESUMABLY THIS WILL NOT OCCUR IN FUTURE READVERTISEMENTS, WE ARE UNABLE TO CONCLUDE THAT YOUR RIGHTS WERE INFRINGED OR YOUR COMPETITIVE POSITION PREJUDICED BY INCLUSION OF YOUR PREVIOUS BID PRICE IN THE RESOLICITATION OF BIDS IN THE PRESENT PROCUREMENT.