B-170266, DEC 30, 1970, 50 COMP GEN 464

B-170266: Dec 30, 1970

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IN ORDER TO OVERCOME THE DIFFICULTIES OF OBTAINING RESPONSIVE BIDS WERE PROPER ACTIONS WITHIN THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY IN THE ABSENCE OF CLEAR PROOF THAT THE EXERCISE OF ADMINISTRATIVE DISCRETION WAS ABUSED. WHERE THE BIDS RECEIVED ARE NONRESPONSIVE BECAUSE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS TO THE EXTENT BIDDERS ARE PREVENTED FROM SUBMITTING RESPONSIVE BIDS. THERE IS COGENT REASON TO DISCARD ALL BIDS. THE ACTION OF THE GALVESTON DISTRICT IN REJECTING ALL BIDS RECEIVED UNDER THE ABOVE-CITED SOLICITATION AND CANCELLATION OF THE SOLICITATION WAS ALSO PROTESTED TO OUR OFFICE. PERFORMANCE CURVES OF THE DIESEL ENGINE WERE ALSO REQUIRED TO BE FURNISHED (PARAGRAPH 1.3.2.2).

B-170266, DEC 30, 1970, 50 COMP GEN 464

BIDS - DISCARDING ALL BIDS - ADMINISTRATIVE DETERMINATION - NO OBLIGATION TO ACCEPT ANY BIDS THE REJECTION OF ALL BIDS BECAUSE THEY FAILED TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF AN INVITATION FOR A PUMPING STATION, WHICH INVITATION HAD BEEN REVISED BY SIX AMENDMENTS, AND THE CHANGES AND CLARIFICATIONS MADE IN THE SPECIFICATIONS BEFORE READVERTISING THE CANCELLED INVITATION, IN ORDER TO OVERCOME THE DIFFICULTIES OF OBTAINING RESPONSIVE BIDS WERE PROPER ACTIONS WITHIN THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY IN THE ABSENCE OF CLEAR PROOF THAT THE EXERCISE OF ADMINISTRATIVE DISCRETION WAS ABUSED. AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE OFFERS RECEIVED; AND WHERE THE BIDS RECEIVED ARE NONRESPONSIVE BECAUSE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS TO THE EXTENT BIDDERS ARE PREVENTED FROM SUBMITTING RESPONSIVE BIDS, THERE IS COGENT REASON TO DISCARD ALL BIDS.

TO SELLERS, CONNER & CUNEO, DECEMBER 30, 1970:

WE REFER TO A TELEGRAM OF JULY 8, 1970, FROM BALDWIN-LIMA-HAMILTON CORPORATION (B-L-H) AND TO YOUR LETTER OF JULY 14, 1970, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DACW64-70-B-0033 ISSUED BY THE DEPARTMENT OF THE ARMY, GALVESTON DISTRICT, CORPS OF ENGINEERS, GALVESTON, TEXAS. BY TELEGRAM DATED JULY 29, 1970, FROM B-L-H, AND YOUR LETTER DATED AUGUST 5, 1970, THE ACTION OF THE GALVESTON DISTRICT IN REJECTING ALL BIDS RECEIVED UNDER THE ABOVE-CITED SOLICITATION AND CANCELLATION OF THE SOLICITATION WAS ALSO PROTESTED TO OUR OFFICE.

THE SUBJECT INVITATION REQUESTED PROPOSALS FOR PERFORMING ALL THE WORK NECESSARY TO DESIGN, MANUFACTURE, SHOP TEST, PREPARE AND LOAD FOR SHIPMENT, AND TO DELIVER TO PORT ARTHUR, TEXAS, DRAINAGE PUMPING EQUIPMENT AND MATERIALS FOR A PUMPING STATION AND TO PROVIDE THE SERVICES OF AN ERECTION ENGINEER. THE INVITATION REQUIRED THAT DESCRIPTIVE DATA BE FURNISHED FOR THE HORIZONTAL PUMP (PARAGRAPH 1.3.1.1 OF THE SPECIAL PROVISIONS), DIESEL ENGINE (PARAGRAPH 1.3.1.2), AND CHAIN DRIVE TRANSMISSIONS (PARAGRAPH 1.3.1.3). PARAGRAPH 1.3.2.1 REQUIRED THAT DRAWINGS AND DESCRIPTIVE LITERATURE BE PROVIDED FOR THE HORIZONTAL PUMP AND STATED:

EACH BIDDER SHALL FURNISH CURVES SHOWING THE EXPECTED PERFORMANCE OF THE PROPOSED PUMPS ON A CONSTANT SPEED BASIS USING CAPACITY AS ABSCISSA AND PUMP BRAKE HORSEPOWER, TOTAL HEAD, POOL-TO-POOL HEAD AND EFFICIENCY AS ORDINATES OVER THE ENTIRE RANGE OF POOL-TO-POOL HEADS FROM 18 TO ZERO FEET. *** .

A PRINT OF THE LONGITUDINAL CROSS SECTION ASSEMBLY OF THE PUMP SHALL BE FURNISHED SHOWING SUCTION PIPING, PROPELLER HOUSING, PROPELLER, SHAFT BEARINGS, STUFFING BOX AND DISCHARGE ELBOW IN SUFFICIENT DETAIL TO ILLUSTRATE GENERAL INTERNAL ARRANGEMENT, PRINCIPAL PARTS AND MATERIALS OF CONSTRUCTION. IT SHALL BE SIMILAR TO FIGURE BF-9 IN THE HYDRAULIC INSTITUTE STANDARDS. ALL PARTS SHOULD BE PROPERLY IDENTIFIED AND ALL OVERALL DIMENSIONS SHALL BE SHOWN. *** .

PERFORMANCE CURVES OF THE DIESEL ENGINE WERE ALSO REQUIRED TO BE FURNISHED (PARAGRAPH 1.3.2.2), AND PARAGRAPH 1.3.2.3 REQUIRED THAT DRAWINGS BE PROVIDED FOR THE CHAIN DRIVE SHOWING OUTLINE AND PRINCIPAL DIMENSIONS OF THE TRANSMISSION UNIT INCLUDING SHAFTS, BEARINGS, COUPLINGS, AND BRAKE OR OVERRUNNING CLUTCH. FINALLY, PARAGRAPH 1.3.2.4 REQUIRED THAT DRAWINGS BE PROVIDED FOR THE PUMPING STATION. IT PROVIDED THAT:

PRINT OF ONE COMPLETE PUMP BAY IN PLAN SHOWING THE MAJOR ITEMS OF EQUIPMENT TO BE FURNISHED. THE ITEMS SHOWN SHALL INCLUDE THE HORIZONTAL PUMP WITH SIPHON DISCHARGE TUBE, DIESEL ENGINE, CHAIN DRIVE TRANSMISSION, SHAFTS, BEARINGS, BRAKE, COUPLINGS, AND BACK FLOW CONTROL GATES AND GATE HOISTS. LAYOUT SHALL BE ORIENTED TO SHOW MAIN PUMP FLOW FROM TOP TO BOTTOM OF SHEET.

PRINT OF A SECTIONAL (TRANSVERSE) DRAWING OF DIESEL ENGINE, CHAIN DRIVE TRANSMISSION, DRIVE COUPLING, AND BACK-FLOW CONTROL GATE AND GATE HOIST. LAYOUT SHALL BE ORIENTED TO SHOW PUMP FLOW FROM RIGHT TO LEFT OF SHEET.

THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 19, 1969, AND SUBSEQUENTLY REVISED BY SIX AMENDMENTS. THE BID OPENING, ORIGINALLY SCHEDULED FOR FEBRUARY 19, 1970, WAS RESCHEDULED AND FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 16, 1970, AS FOLLOWS:

ALLIS-CHALMERS MANUFACTURING COMPANY $2,179,350

KSB PUMP COMPANY 2,664,110

B-L-H 1,964,255

FAIRBANKS MORSE, INC. 2,256,882

ALL BIDDERS WERE REPRESENTED AT THE BID OPENING AND B-L-H WAS ANNOUNCED AS THE APPARENT LOW BIDDER.

IN ACCORDANCE WITH THE INVITATION REQUIREMENTS, B-L-H SUBMITTED DESCRIPTIVE LITERATURE AND DATA. HOWEVER, SOME OF THE DRAWINGS SUBMITTED BY B-L-H BORE RESTRICTIVE NOTATIONS. DRAWINGS SUBMITTED IN ACCORDANCE WITH PARAGRAPH 1.3.2.4 OF THE SOLICITATION (PUMP BAY PLAN AND A SECTIONAL TRAVERSE ELEVATION OF THE ENTIRE PUMP) AND IN ACCORDANCE WITH PARAGRAPH 1.3.2.1 (PUMP CROSS-SECTION) BORE THE FOLLOWING RESTRICTION:

ON RECEIVING THIS DRAWING, THE RECIPIENT AGREES: THE DRAWING AND ITS CONTENTS REMAIN THE SOLE PROPERTY OF THE INDUSTRIAL EQUIPMENT DIVISION OF BALDWIN-LIMA-HAMILTON CORPORATION, ARE RECEIVED IN CONFIDENCE, WILL BE RETURNED UPON DEMAND, WILL NOT BE REPRODUCED OR COPIED IN WHOLE OR IN PART, DISCLOSED TO OTHERS, OR USED TO THE DETRIMENT OF THE INDUSTRIAL EQUIPMENT DIVISION OF BALDWIN-LIMA-HAMILTON CORPORATION.

THE DRAWING SUBMITTED IN ACCORDANCE WITH PARAGRAPH 1.3.2.2 (A PRINT SHOWING THE OUTLINE OF THE DIESEL ENGINE AND ITS OVERALL DIMENSIONS) WAS FURNISHED BY B-L-H'S SUPPLIER, STEWART & STEVENSON SERVICES, WHICH HAD THE FOLLOWING NOTE STAMPED ON IT:

THIS DRAWING CONTAINS PROPRIETARY AND CONFIDENTIAL INFORMATION OF STEWART & STEVENSON SERVICES, INC. OF HOUSTON, TEXAS, AND IS LOANED IN CONFIDENCE WITH THE UNDERSTANDING THAT IT WILL NOT BE REPRODUCED NOR USED FOR ANY PURPOSE EXCEPT THAT FOR WHICH IT IS LOANED AND IT SHALL BE RETURNED ON DEMAND.

B-L-H'S BID ALSO FAILED TO INCLUDE A "TOTAL HEAD" CURVE WITH ITS PUMP PERFORMANCE CURVE AS REQUIRED BY PARAGRAPH 1.3.2.1 OF THE SPECIFICATIONS.

IMMEDIATELY AFTER THE BID OPENING, AND BEFORE THE RESTRICTIVE NOTES ON THE B-L-H DRAWINGS WERE NOTED BY THE GOVERNMENT, ALL BIDS WERE MADE AVAILABLE TO OTHER BIDDERS FOR REVIEW WITHOUT RESTRICTIONS. IT IS REPORTED THAT THIS LASTED FOR APPROXIMATELY 30 MINUTES. WHEN BIDDERS RETURNED THE NEXT DAY TO CHECK THE BIDS OF OTHER BIDDERS IN MORE DETAIL, THE PROCUREMENT ACTIVITY HAD, BY THAT TIME, NOTED THE RESTRICTIVE NOTES ON B-L-H'S DRAWINGS AND REFUSED TO PERMIT ANY FURTHER REVIEW. IN THIS REGARD, PARAGRAPH 1.2 OF THE SPECIAL PROVISIONS OF THE INVITATION RESPECTING DESCRIPTIVE LITERATURE PROVIDED IN PART:

*** BIDDERS ARE CAUTIONED THAT IF A BIDDER IMPOSES A RESTRICTION THAT ANY OF THE REQUIRED DATA MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCT OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICES AND DELIVERY TERMS.

AS A RESULT OF THE REVIEW OF EACH OTHER'S BIDS, THE THREE LOW-BIDDERS WROTE LETTERS TO THE GALVESTON DISTRICT POINTING OUT DISCREPANCIES THEY HAD DISCOVERED IN THEIR COMPETITORS' BIDS.

THE SECOND LOW BIDDER, ALLIS-CHALMERS, PROTESTED TO THE GALVESTON DISTRICT BY TELEGRAPHIC MESSAGE AND LETTER DATED MAY 8, 1970, THE AWARD OF A CONTRACT TO B-L-H. BY LETTERS TO GALVESTON DISTRICT DATED APRIL 21 AND MAY 14, 1970, THE THIRD LOW BIDDER, FAIRBANKS MORSE, PROTESTED THE AWARD OF A CONTRACT TO EITHER THE LOW OR SECOND LOW BIDDER. BY TELEGRAM TO THE GALVESTON DISTRICT DATED MAY 29, 1970, B-L-H PROTESTED AWARD TO ANY OTHER BIDDER.

DURING THIS TIME, BID ANALYSIS OF THE THREE LOW BIDS WAS ALSO BEING CONDUCTED BY THE DISTRICT ENGINEER (CONTRACTING OFFICER). THE DISTRICT ENGINEER CONCLUDED THAT WHILE THE TECHNICAL EVALUATION QUALIFIED B-L-H FOR AWARD, ITS BID SHOULD BE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION (SEE PARAGRAPH 1.2 OF THE SPECIAL PROVISIONS, ABOVE QUOTED) BECAUSE OF THE RESTRICTIVE NOTES AS TO DISCLOSURE APPEARING ON SOME OF THE DRAWINGS SUBMITTED BY IT WITH ITS BID.

THE DISTRICT ENGINEER DETERMINED THE BID OF ALLIS-CHALMERS TO BE RESPONSIVE TO THE INVITATION AND CONCLUDED THAT SEVERAL DISCREPANCIES NOTED WERE MINOR IN NATURE AND WERE NOT PREJUDICIAL TO THE OTHER BIDDERS.

THE DISTRICT ENGINEER ALSO DETERMINED THAT THE BID OF FAIRBANKS MORSE WAS NONRESPONSIVE BECAUSE IT MATERIALLY DEVIATED FROM THE SPECIFICATION REQUIREMENTS.

BY LETTER DATED JUNE 5, 1970, THE FINDINGS OF THE DISTRICT ENGINEER WERE FORWARDED TO THE OFFICE OF THE CHIEF OF ENGINEERS, VIA THE DIVISION ENGINEER, SOUTHWESTERN DIVISION, CORPS OF ENGINEERS. THE DIVISION ENGINEER REJECTED THE DISTRICT ENGINEER'S RECOMMENDATION FOR REJECTION OF THE LOW BID OF B-L-H BECAUSE OF THE RESTRICTIVE NOTES APPEARING ON SOME OF THE DRAWINGS. THE DIVISION ENGINEER CONCLUDED THAT, WHILE SEVERAL OF THE DRAWINGS SUBMITTED WITH B-L-H'S BID BORE RESTRICTIVE NOTES, OTHER INFORMATION FURNISHED WITH THE BID PROVIDED SUFFICIENT INFORMATION AS TO ENABLE COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF PRODUCT OFFERED.

THE DIVISION ENGINEER ALSO DETERMINED THAT THE GOVERNMENT WAIVED ANY RIGHT IT MAY HAVE HAD TO REJECT THE BID BECAUSE OF THE RESTRICTIVE NOTES ON SOME OF THE DRAWINGS WHEN IT ALLOWED ALL BIDDERS IMMEDIATELY FOLLOWING BID OPENING, AND PRIOR TO THE GOVERNMENT BECOMING AWARE OF THE RESTRICTIVE NOTES, TO REVIEW ALL BIDS.

THEREAFTER, ON JULY 1, 1970, THE OFFICE OF THE CHIEF OF ENGINEERS MADE A TECHNICAL REVIEW OF THE LOW BIDS AND CONCLUDED THAT:

1. A REVIEW OF THE PROPOSAL SUBMITTED BY THE BALDWIN-LIMA-HAMILTON CORPORATION INDICATES THE FOLLOWING:

B. PG. 9, PARA 1.3.2.1.

(1) THE TOTAL HEAD-CAPACITY CURVE REQUIRED BY THIS PARAGRAPH WAS NOT FURNISHED. THIS IS A MAJOR DEVIATION.

(2) BALDWIN-LIMA-HAMILTON DRAWING NO. 550-5-00633 HAS A RESTRICTIVE NOTE IN TITLE BLOCK. IN ACCORDANCE WITH PARAGRAPH 1.2 ON PAGE 8, THIS RENDERS THE BID NONRESPONSIVE.

C. PG. 9, PARA. 1.3.2.2 STEWART AND STEVENSON SERVICES DRAWING NO. 16357 HAS RESTRICTIVE NOTE STAMPED ON IT. THE DRAWINGS ARE IDENTICAL EXCEPT FOR THE RESTRICTIVE NOTE WITH THOSE SUBMITTED WITH THE ALLIS CHALMERS BID.

D. PG. 10, PARA. 1.3.2.4. BALDWIN-LIMA-HAMILTON DRAWINGS NOS. 550-4 00372 AND 550-4-00373 HAVE A RESTRICTIVE NOTE IN THE TITLE BLOCK. ACCORDANCE WITH PARAGRAPH 1.2 ON PAGE 8, THIS RENDERS THE BID NONRESPONSIVE.

2. A REVIEW OF THE PROPOSAL SUBMITTED BY THE ALLIS-CHALMERS MANUFACTURING COMPANY INDICATES THE FOLLOWING:

B. PG. 9, PARA. 1.3.2.1. THE TOTAL HEAD CAPACITY CURVE REQUIRED BY THIS PARAGRAPH WAS NOT FURNISHED. THIS IS A MAJOR DEVIATION.

C. PG. 9, PARA, 1.3.2.1. DRAWING P-5060-HS-1 IS NOT IN ACCORDANCE WITH PARAGRAPH 11.5.2 ON PAGE 2-7 IN THE SPECIFICATIONS, AS ONLY ONE BEARING IS BEING PROVIDED. THIS IS A MAJOR DEVIATION.

3. A REVIEW OF THE PROPOSAL SUBMITTED BY FAIRBANKS MORSE INDICATES THE FOLLOWING:

B. PG. 9, PARA. 1.3.2.1.

(1) THIS PARAGRAPH REQUIRES THAT ALL OVERALL DIMENSIONS BE SHOWN ON DRAWING OF LONGITUDINAL CROSS SECTION OF PUMP. NO DIMENSIONS HAVE BEEN SHOWN ON FAIRBANKS MORSE DRAWING NO. A-KP96670. THIS IS A MAJOR DEVIATION.

D. PG. 10. PARA. 1.3.3.3, EXPERIENCE ON PROPOSED ENGINE IS OF A DIFFERENT TYPE THAN THAT REQUIRED IN THE INSTANT CASE. THE TOTAL NUMBER OF HOURS OF OPERATION ACCUMULATED ON ENGINE OVER THE 17-YEAR PERIOD INDICATES ENGINE HAS NOT BEEN USED ON A CONTINUOUS BASIS, BUT ONLY ON AN INTERMITTENT SHORT TIME BASIS. FURTHERMORE, A COMPARISON OF THE PUBLISHED DATA ON THIS ENGINE WITH THE CURVES SHOWN ON 8761CH INDICATES THAT THE MAXIMUM BHP AT 900 RPM ON THE CURVE SHEET (THE 2 HOUR IN 24 HOUR RATING) IS GREATER THAN THE PUBLISHED PEAKING RATING. AS THIS CANNOT BE, THIS IS CONSIDERED TO BE A MAJOR DEVIATION.

THE HIGH BID OF KSB PUMP COMPANY CONTAINED A MAJOR DEVIATION, IN THAT IT DID NOT PROVIDE INFORMATION REQUESTED ON THE DIESEL ENGINE AND THE CHAIN DRIVE TRANSMISSION.

AS A RESULT OF THIS TECHNICAL REVIEW, THE OFFICE OF THE CHIEF OF ENGINEERS DIRECTED THAT ALL BIDS BE REJECTED AND SUGGESTED THAT VARIOUS CHANGES AND CLARIFICATIONS BE MADE IN THE SPECIFICATIONS BEFORE READVERTISING. BY TELEGRAM DATED JULY 21, 1970, ADDRESSED TO EACH BIDDER, THE DISTRICT ENGINEER ADVISED THAT ALL BIDS WERE BEING REJECTED BECAUSE THEY FAILED TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION AND THAT THE PROCUREMENT WOULD BE READVERTISED.

YOU HAVE CONTENDED THAT THE DETERMINATION THAT THE BID OF B-L-H WAS NONRESPONSIVE BECAUSE OF RESTRICTIVE NOTATIONS ON SEVERAL OF THE DRAWINGS WAS IMPROPER BECAUSE IT WAS POSSIBLE FOR COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF PRODUCT B-L-H WAS OFFERING FROM OTHER UNRESTRICTED DRAWINGS AND DESCRIPTIVE DATA SUBMITTED WITH B-L-H'S BID. YOU ALSO STATE THAT A STATEMENT MADE BY B-L-H IN THE COVER LETTER WHICH IT SUBMITTED WITH ITS BID, WHICH CONTAINED AN OVERALL OFFER TO COMPLY, CLEARLY INDICATED THAT IT HAD NO INTENTION TO DEVIATE FROM THE INVITATION REQUIREMENTS.

YOU CONTEND FURTHER THAT REJECTION OF ALL BIDS AND CANCELLATION OF THE INVITATION BECAUSE OF ALLEGED TECHNICAL DEFICIENCIES IN ALL BIDS WAS ERRONEOUS AND THAT AWARD OF THE CONTRACT SHOULD BE MADE TO B-L-H.

THE SOLICITATION WHICH IS THE SUBJECT OF YOUR PROTEST HAS BEEN REISSUED BY THE CORPS OF ENGINEERS UNDER INVITATION FOR BIDS DACW64-71 B-0060 WITH BID OPENING SET FOR NOVEMBER 3, 1970. THE RESOLICITATION INCORPORATED CHANGES TO THE ORIGINAL TECHNICAL PROVISIONS OF THE SPECIFICATIONS AS WELL AS TO THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE. YOU CONTEND THAT THE ELIMINATION IN THE SECOND INVITATION OF THE REQUIREMENT THAT THE TOTAL HEAD CURVE SHOWING THE EXPECTED PERFORMANCE OF THE PROPOSED PUMPS BE GIVEN CLEARLY INDICATES THAT IT WAS NOT AN IMPORTANT REQUIREMENT OF THE FIRST INVITATION. UNDER THE FIRST INVITATION, THE OFFICE OF THE CHIEF OF ENGINEERS HAD DETERMINED THAT THE FAILURE OF B-L-H AND ALLIS-CHALMERS TO INCLUDE SUCH A FIGURE IN THEIR BIDS WAS A MAJOR DEVIATION FROM THE SPECIFICATIONS AND SUCH DEVIATION WAS ONE OF THE REASONS THE INVITATION WAS CANCELED.

IT HAS BEEN ADMINISTRATIVELY REPORTED THAT IN VIEW OF THE DIFFICULTIES IN OBTAINING RESPONSIVE BIDS, IT WAS DECIDED TO MAKE CHANGES FOR CLARIFICATION PURPOSES IN SOME OF THE PARAGRAPHS IN THE SOLICITATION BEFORE IT WAS READVERTISED. IN THE INTEREST OF AVOIDING FUTURE NONRESPONSIVE BIDS, THE TOTAL CAPACITY TOTAL HEAD CURVE REQUIREMENT WAS ELIMINATED IN VIEW OF THE CONTRACTING OFFICER'S DETERMINATION THAT WITH THE OTHER CLARIFICATIONS MADE IN THE SPECIFICATIONS, ESPECIALLY THOSE CONCERNING THE RATING OF THE DIESEL ENGINE AND THE REQUIREMENTS FOR THE CHAIN DRIVE TRANSMISSION, BOTH OF WHICH INCLUDE CAPACITY BASED UPON POOL- TO-POOL HEAD SET FORTH IN SECTION 2, PARAGRAPH 6 OF THE SPECIFICATION, THE DIESEL ENGINE RATING COULD BE ASCERTAINED WITHOUT REFERENCE TO A CAPACITY TOTAL HEAD CURVE.

WE DO NOT FEEL THAT THE ELIMINATION OF THE CAPACITY TOTAL HEAD CURVE IN THE SECOND INVITATION LENDS CREDENCE TO THE ARGUMENT THAT IT WAS NOT AN IMPORTANT ELEMENT IN THE FIRST INVITATION. RATHER, WE FEEL THAT BY MODIFYING THE SECOND INVITATION SPECIFICATIONS SO THAT A DIESEL ENGINE RATING COULD BE OBTAINED WITHOUT REFERENCE TO A CAPACITY TOTAL HEAD CURVE, SUCH CURVE BEING A SOURCE OF DIFFICULTY FOR SEVERAL BIDDERS UNDER THE FIRST INVITATION, THE ELIMINATION OF THAT CURVE IN THE SECOND INVITATION AND THE INCLUSION IN THAT INVITATION OF MEANS TO ENABLE SUCH INFORMATION TO BE OBTAINED OTHERWISE WITHOUT RECOURSE TO A CAPACITY TOTAL HEAD CURVE WAS PROPER AND JUSTIFIED. THE INFORMATION THAT A CAPACITY TOTAL HEAD CURVE GIVES MAY STILL BE OBTAINED UNDER THE TERMS OF THE SECOND INVITATION.

ALTHOUGH THE PROTEST IS DIRECTED TO THE REJECTION OF THE B-L-H BID BECAUSE OF THE RESTRICTIVE NOTATIONS ON SOME OF THE DRAWINGS B-L-H SUBMITTED WITH ITS BID, THE PRIMARY QUESTION IS WHETHER THE PROCUREMENT ACTIVITY ACTED PROPERLY WHEN IT REJECTED ALL BIDS, CANCELED THE INVITATION AND RESOLICITED THE PROCUREMENT UNDER REVISED SPECIFICATIONS.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED UNDER VARIOUS CIRCUMSTANCES, INCLUDING THOSE INSTANCES WHEN IT IS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO; WHERE THE BIDS RECEIVED ARE NONRESPONSIVE; OR WHERE THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS TO SUCH AN EXTENT AS TO PREVENT A BIDDER FROM SUBMITTING A RESPONSIVE BID. 17 COMP. GEN. 554 (1938); 26 ID. 49 (1946); 37 ID. 760 (1958). MOREOVER, UNDER PARAGRAPH 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS RECEIVED UNDER THE INVITATION. SEE 10 U.S.C. 2305(C) TO THE SAME EFFECT. ALSO, PARAGRAPHS 2 -404.1(B)(I) AND (VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION RECOGNIZE THE AUTHORITY OF THE CONTRACTING OFFICER TO REJECT ALL BIDS AFTER OPENING AND PRIOR TO AWARD WHERE HE DETERMINES THAT THE PARTICULAR INVITATION INCLUDES INADEQUATE OR AMBIGUOUS SPECIFICATIONS OR WHERE IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. FROM THE FOREGOING, IT IS CLEAR THAT THE REJECTION OF ALL BIDS AND THE READVERTISING OF A PROCUREMENT IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION.

SINCE THE RESPONSIBILITY FOR MAKING A DETERMINATION TO REJECT ALL BIDS RESTS WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY, IN THE ABSENCE OF CLEAR PROOF THAT SUCH DISCRETION WAS ABUSED, OUR OFFICE WILL NOT OBJECT TO SUCH ACTION. THIS IS ESPECIALLY TRUE WHERE, AS HERE, THE THREE LOW BIDS RECEIVED WERE DETERMINED TO BE NONRESPONSIVE, AND WHERE SUBSEQUENT CHANGES WERE MADE IN A NEW INVITATION TO BETTER ASSURE THE SUBMISSION OF RESPONSIVE BIDS. OF COURSE, WE HAVE REPEATEDLY OBSERVED THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER OR PROSPECTIVE BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SUCH ACTION SHOULD NOT BE TAKEN EXCEPT FOR COGENT REASONS. HOWEVER, WE BELIEVE THERE WAS A PROPER BASIS FOR THE ADMINISTRATIVE DETERMINATION REGARDING THE NONRESPONSIVENESS OF THE BIDS RECEIVED AND THE DEFICIENCY OF THE INVITATION REGARDING DATA. SUCH BEING THE CASE, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ACTION TAKEN. SEE 39 COMP. GEN. 396, 399 (1959); AND B-169342, B-169351, B-169503, JUNE 19, 1970.

IN VIEW OF THE FOREGOING, YOUR OTHER CONTENTIONS REGARDING B-L-H'S BID NEED NOT BE CONSIDERED, ESPECIALLY SINCE THE PROCUREMENT HAS NOW BEEN READVERTISED UNDER REVISED SPECIFICATIONS.