B-173311(2), OCT 7, 1971

B-173311(2): Oct 7, 1971

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WAS SIMILAR TO A PREVIOUSLY CANCELLED INVITATION. UNDER WHICH PROTESTANT WAS LOW BIDDER. IT WAS NOT AN IDENTICAL RESTATEMENT OF THE ORIGINAL SPECIFICATIONS AND THEREFORE AN AWARD UNDER THE ORIGINALLY CANCELLED IFB WOULD NOT HAVE BEEN APPROPRIATE. INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 30. THREE BIDS WERE OPENED ON MARCH 15. ORIGIN WAS THE LOWEST RECEIVED. A DETERMINATION WAS MADE BY HUNTERS POINT NAVAL SHIPYARD TO REVISE THE SPECIFICATIONS. AUTHORIZING FOR THE CANCELLATION OF INVITATIONS AFTER OPENING BUT PRIOR TO AWARD WHEN "SPECIFICATIONS HAVE BEEN REVISED.". THE PROCUREMENT WAS READVERTISED UNDER IFB -2741. THE IFB WAS AMENDED ACCORDINGLY INCREASING THE NUMBER OF FINS. FOUR BIDS WERE RECEIVED UNDER IFB -2741.

B-173311(2), OCT 7, 1971

BID PROTEST - PROCUREMENT PROCEDURES - CANCELLED IFB DECISION DENYING PROTEST AGAINST CANCELLATION OF AN IFB AND SUBSEQUENT READVERTISEMENT RESULTING IN A CONTRACT TO ELECTRO-FORM, INC., UNDER AN INVITATION ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIF., FOR 4,400 FEET OF STAINLESS STEEL CATAPULT FINNED TUBING. WHILE THE SUBJECT PROCUREMENT, AS AMENDED, WAS SIMILAR TO A PREVIOUSLY CANCELLED INVITATION, UNDER WHICH PROTESTANT WAS LOW BIDDER, IT WAS NOT AN IDENTICAL RESTATEMENT OF THE ORIGINAL SPECIFICATIONS AND THEREFORE AN AWARD UNDER THE ORIGINALLY CANCELLED IFB WOULD NOT HAVE BEEN APPROPRIATE.

TO NORTHWEST TECHNICAL INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1971, WITH ENCLOSURES, PROTESTING THE ACTION OF THE NAVAL REGIONAL PROCUREMENT OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, CANCELING INVITATION FOR BIDS (IFB) N66314-71-B-2049 AND READVERTISING THE PROCUREMENT UNDER IFB NO. N66314 71 -B-2741.

IFB -2049, ISSUED FEBRUARY 26, 1971, SOLICITED BIDS FOR FURNISHING 4,200 FEET OF STAINLESS STEEL FINNED CATAPULT TUBING IN ACCORDANCE WITH TECHNICAL SPECIFICATIONS CITED THEREIN FOR SCHEDULED WORK ABOARD THE USS RANGER (CVA-61). THREE BIDS WERE OPENED ON MARCH 15, 1971. THE BID FROM YOUR COMPANY IN THE AMOUNT OF $73,290 F.O.B. ORIGIN WAS THE LOWEST RECEIVED. SUBSEQUENTLY, A DETERMINATION WAS MADE BY HUNTERS POINT NAVAL SHIPYARD TO REVISE THE SPECIFICATIONS. THEREAFTER, THE CONTRACTING OFFICER CANCELED THE INVITATION PURSUANT TO PARAGRAPH 2 404.1(B)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AUTHORIZING FOR THE CANCELLATION OF INVITATIONS AFTER OPENING BUT PRIOR TO AWARD WHEN "SPECIFICATIONS HAVE BEEN REVISED."

ON MAY 20, 1971, THE PROCUREMENT WAS READVERTISED UNDER IFB -2741. UPON BECOMING AWARE OF THE CHANGED SPECIFICATIONS, COM NAV AIR PAC, THE OPERATOR OF PACIFIC BASED AIRCRAFT CARRIERS, INSISTED THAT THE IFB BE AMENDED "TO PROVIDE MATERIAL EQUIVALENT TO THE ORIGINAL SOLICITATION WITH THE ADDITION OF HIGH FREQUENCY WELDING AND COLLARS OR SHOULDERS WHERE THE FINS ATTACH." THE IFB WAS AMENDED ACCORDINGLY INCREASING THE NUMBER OF FINS.

FOUR BIDS WERE RECEIVED UNDER IFB -2741, AS AMENDED. THE LOWEST F.O.B. ORIGIN BID IN THE AMOUNT OF $59,732 WAS SUBMITTED BY BERLIN CHAPMAN, DIVISION OF THE PERFEX CORPORATION, BUT SUCH BID WAS REJECTED AS NONRESPONSIVE TO THE IFB, AS AMENDED. THE SECOND LOWEST F.O.B. ORIGIN BID IN THE AMOUNT OF $71,280 WAS SUBMITTED BY ELECTRO-FORM, INC., AND THE THIRD LOWEST F.O.B. ORIGIN IN THE AMOUNT OF $76,780 WAS SUBMITTED BY YOUR FIRM. THE FOURTH LOWEST F.O.B. ORIGIN BID IN THE AMOUNT OF $105,424 WAS SUBMITTED BY THE RITTLING CORPORATION. THE RECORD INDICATES THAT ON MAY 14, 1971, THE REQUISITIONING ACTIVITY UPGRADED THE PRIORITY DESIGNATION FOR THE FINNED TUBING FROM PRIORITY RATING OF 06 TO A PRIORITY RATING OF 03. IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2-407.8(B)(2), OUR OFFICE WAS INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY ON JULY 1, 1971, THAT DUE TO THE URGENT NEED FOR THE FINNED TUBING, THE CONTRACTING OFFICER WAS AUTHORIZED TO PROCEED WITH AN IMMEDIATE AWARD TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. ON JULY 8, 1971, CONTRACT NO. N66314-71-C-2741 WAS AWARDED TO ELECTRO-FORM, INC. BY LETTER DATED JULY 19, 1971, THE CONTRACTING OFFICER NOTIFIED YOUR FIRM OF THE AWARD THAT WAS MADE TO ELECTRO-FORM, INC.

YOU PROTEST AGAINST THE AWARD UNDER IFB -2741 BECAUSE IT WAS AMENDED TO CONFORM SUBSTANTIALLY TO CANCELED IFB -2049 AND YOU CONTEND THAT THE AWARD SHOULD THEREFORE HAVE BEEN MADE TO YOUR FIRM UNDER IFB -2049.

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 EXERCISE THEIR DISCRETION 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).

IN THE IMMEDIATE CASE, THE DETERMINATION TO CANCEL THE ORIGINAL IFB AND READVERTISE THE PROCUREMENT WAS BASED UPON A CHANGE IN THE ORIGINAL SPECIFICATIONS. ALTHOUGH, AFTER THE NEW IFB WAS ISSUED, A DETERMINATION WAS MADE TO AMEND THE NEW SPECIFICATIONS, THIS LATTER AMENDMENT, AS INDICATED ABOVE, DID NOT RESULT, IN EFFECT, IN A RESTATEMENT OF THE ORIGINAL SPECIFICATIONS. IN THE CIRCUMSTANCES, THE ACTION OF THE CONTRACTING OFFICER WAS NOT IMPROPER AND SINCE THE SPECIFICATIONS AS AMENDED IN IFB -2741 WERE NOT IDENTICAL TO THE SPECIFICATIONS IN IFB - 2049, AN AWARD UNDER IFB -2049 WOULD NOT HAVE BEEN APPROPRIATE.

ACCORDINGLY, THE PROTEST IS DENIED.