B-171285, MAR 25, 1971

B-171285: Mar 25, 1971

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WAS FURNISHED ERRONEOUS INFORMATION. THE BIDDERS COULD NOT BE SAID TO HAVE COMPETED ON AN EQUAL BASIS. THE ACTIONS OF THE CONTRACTING OFFICER IN CANCELLING THE INVITATION MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WILL BEST BE SERVED THEREBY. THE PROTEST IS DENIED. INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17. THE ARAWAK CORPORATION (ARAWAK) WAS REQUESTED TO VERIFY ITS LOW BID. SUBSEQUENT DEVELOPMENT OF THE MATTER REVEALED THAT ARAWAK'S PLUMBING SUBCONTRACTOR HAD MADE AN ORAL REQUEST OF THE PANAMA AREA ENGINEER FOR AN INTERPRETATION OF AMENDMENT 0004 SEVERAL DAYS PRIOR TO BIDDING AND THAT AS A RESULT OF SUCH INQUIRY ARAWAK WAS ORALLY ADVISED BY THE PANAMA AREA OFFICE ENGINEER THAT THE KITCHENETTE UNITS HAD BEEN DELETED FROM THE CONTRACT BY THE AMENDMENT.

B-171285, MAR 25, 1971

BID PROTEST - CANCELLATION OF IFB DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST CANCELLATION OF AN IFB FOR AIR CONDITIONING AND OTHER IMPROVEMENTS AT FORT CLAYTON, CANAL ZONE, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, CORPS OF ENGINEERS. SINCE LOW BIDDER, ARAWAK CORPORATION, WAS FURNISHED ERRONEOUS INFORMATION, THROUGH ITS SUBCONTRACTOR, CONCERNING THE INTERPRETATION OF AN AMENDMENT TO THE IFB, THE BIDDERS COULD NOT BE SAID TO HAVE COMPETED ON AN EQUAL BASIS. FURTHER, THE ACTIONS OF THE CONTRACTING OFFICER IN CANCELLING THE INVITATION MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WILL BEST BE SERVED THEREBY. ACCORDINGLY, THE PROTEST IS DENIED.

TO ABRIGHT ELECTRIC CONSTRUCTION CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1970, AND PRIOR CORRESPONDENCE, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DACA01-70-B-0045, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, CORPS OF ENGINEERS.

THE IFB, AS AMENDED, INVITED BIDS FOR AIR CONDITIONING AND OTHER IMPROVEMENTS TO BE INSTALLED IN CERTAIN BUILDINGS AT FORT CLAYTON, CANAL ZONE. AFTER THE OPENING OF BIDS, THE ARAWAK CORPORATION (ARAWAK) WAS REQUESTED TO VERIFY ITS LOW BID. IT VERIFIED THE BID PRICE, HOWEVER, IN THE PROCESS OF DOING SO IT ADVISED THAT ITS SUBCONTRACTOR HAD NOT INCLUDED ANYTHING FOR FURNISHING AND INSTALLING KITCHENETTE UNITS IN THE PRICE UPON WHICH IT HAD BASED ITS BID. SUBSEQUENT DEVELOPMENT OF THE MATTER REVEALED THAT ARAWAK'S PLUMBING SUBCONTRACTOR HAD MADE AN ORAL REQUEST OF THE PANAMA AREA ENGINEER FOR AN INTERPRETATION OF AMENDMENT 0004 SEVERAL DAYS PRIOR TO BIDDING AND THAT AS A RESULT OF SUCH INQUIRY ARAWAK WAS ORALLY ADVISED BY THE PANAMA AREA OFFICE ENGINEER THAT THE KITCHENETTE UNITS HAD BEEN DELETED FROM THE CONTRACT BY THE AMENDMENT. THE ADVICE FURNISHED BY THE OFFICE ENGINEER WAS THE RESULT OF A DISCUSSION OF THE MATTER WITH THE MOBILE DISTRICT OFFICE. APPARENTLY THERE WAS SOME CONFUSION WITHIN THE PROCURING AGENCY WHICH RESULTED IN ERRONEOUS INFORMATION BEING FURNISHED THE BIDDER PRIOR TO BID OPENING.

THE CONTRACTING OFFICER CANCELED THE IFB ON THE FOLLOWING BASIS:

" *** IN VIEW OF THE FACT THAT ERRONEOUS INFORMATION WAS FURNISHED THE LOW BIDDER, AND THE FURTHER FACT THAT ALL BIDDERS WERE NOT FURNISHED IDENTICAL INFORMATION ON WHICH TO BASE THEIR BIDS, I FOUND THAT THE INVITATION PRESENTED DIFFERENT TARGETS TO THE VARIOUS BIDDERS AND THAT THESE TARGETS WERE INCOMPATIBLE AND SIGNIFICANTLY DIFFERENT IN VALUE. FOR THIS REASON, TRUE COMPETITION WAS IMPOSSIBLE UNDER THIS INVITATION FOR BIDS AND THERE WAS NO EQUITABLE METHOD FOR MAKING A PROPER AWARD. BASED ON THIS FINDING OF INCOMPATIBLE TARGETS FOR THE VARIOUS BIDDERS I FOUND IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO CANCEL THE INVITATION FOR BIDS AFTER OPENING PURSUANT TO ASPR 2 404.1(B)(VIII)."

YOU ALLEGE THAT THE IFB SHOULD NOT HAVE BEEN CANCELED AND THAT, AS SECOND LOW BIDDER, YOU SHOULD RECEIVE THE AWARD. YOUR GROUNDS FOR THE ALLEGATION IS THAT THE ORAL MISREPRESENTATION BY THE GOVERNMENT SHOULD NOT AFFECT THE VALIDITY OF THE IFB BECAUSE STANDARD GOVERNMENT PROCEDURE REQUIRES THAT ANY OFFICIAL CLARIFICATION OF THE IFB SHOULD BE IN WRITING.

PARAGRAPH 2-404.1(B) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT AN IFB MAY BE CANCELED AFTER BID OPENING BUT PRIOR TO AWARD WHEN THE CONTRACTING OFFICER DETERMINES IN WRITING THAT:

"(VIII) *** CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT."

IN B-169101, APRIL 14, 1970, IT WAS STATED:

"WE ARE AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND 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. CF. 38 COMP. GEN. 235 (1958) AND 39 ID. 86 (1959)." FURTHER, IN B-169205, MAY 22, 1970, OUR OFFICE HELD THAT WHERE A BIDDER, TO HIS PREJUDICE, IS ALONE FURNISHED INFORMATION AFFECTING PRICE IN AN IRREGULAR MANNER, THE INVITATION SHOULD BE CANCELED SINCE BIDDERS COULD NOT BE SAID TO HAVE COMPETED ON AN EQUAL BASIS.

ACCORDINGLY, THE PROTEST IS DENIED.