B-174010, JAN 24, 1972, 51 COMP GEN 426

B-174010: Jan 24, 1972

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A FIRST ARTICLE TEST REPORT WHICH WAS NOT TO BE SEPARATELY PRICED. OF THE INDICATORS WAS AN INADEQUATE INVITATION AND WAS PROPERLY CANCELED PURSUANT TO 10 U.S.C. 2305(C) AND PARAGRAPH 2- 404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION. THE REASON FOR CANCELLATION OF THE INADEQUATE INVITATION WAS COGENT. 1972: REFERENCE IS MADE TO OUR VARIOUS INFORMAL COMMUNICATIONS. ITEM 0001 WAS FOR A DEFINITE QUANTITY OF 215 EACH. WHILE ITEM 0002 WAS FOR AN ESTIMATED QUANTITY OF 1500 EACH WHICH. WE ARE INFORMED. WAS FOR A 2-YEAR REQUIREMENT. BIDDERS WERE INSTRUCTED TO BID ON A FIRST ARTICLE APPROVAL CONTRACTOR TESTING NOT REQUIRED UNDER BID A. ITEM 0003 REQUIRED A FIRST ARTICLE TEST REPORT WHICH WAS NOT TO BE SEPARATELY PRICED.

B-174010, JAN 24, 1972, 51 COMP GEN 426

BIDS - DISCARDING ALL BIDS - SPECIFICATIONS DEFECTIVE - INFORMATION OMISSION AN INVITATION FOR BIDS SOLICITING ATTITUDE INDICATORS FOR A 2-YEAR PERIOD THAT INCLUDED ITEMS FOR DEFINITE AND ESTIMATED QUANTITIES, AND A FIRST ARTICLE TEST REPORT WHICH WAS NOT TO BE SEPARATELY PRICED, BUT OMITTED THE TECHNICAL DATA SPECIFICATION FOR DETERMINING THE COST OF SPARE PARTS, MAINTENANCE, ETC., OF THE INDICATORS WAS AN INADEQUATE INVITATION AND WAS PROPERLY CANCELED PURSUANT TO 10 U.S.C. 2305(C) AND PARAGRAPH 2- 404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION, SINCE THE OMISSION PRECLUDED CONSIDERATION OF ALL COST FACTORS AS REQUIRED BY ASPR 2 -404.1(B)(IV), AND THEREFORE THE MINIMUM NEEDS OF THE GOVERNMENT NOT HAVING BEEN MET, THE REASON FOR CANCELLATION OF THE INADEQUATE INVITATION WAS COGENT. MOREOVER, REINSTATEMENT OF THE ORIGINAL INVITATION TO PERMIT THE DATA PACKAGE TO BE OFFERED WOULD BE PREJUDICIAL WITHOUT INSURING THE STANDING OF BIDDERS WOULD REMAIN UNCHANGED.

TO WYMAN, BAUTZER, ROTHMAN AND KUCHEL, JANUARY 24, 1972:

REFERENCE IS MADE TO OUR VARIOUS INFORMAL COMMUNICATIONS, A LETTER DATED OCTOBER 11, 1971, FROM YOUR FIRM AND A LETTER, WITH ATTACHMENTS, DATED AUGUST 31, 1971, FROM THE DIRECTOR, MARKETING, OF YOUR CLIENT, GUIDANCE TECHNOLOGY, INC., RELATIVE TO THAT FIRM'S PROTEST AGAINST THE CANCELLATION OF INVITATION FOR BIDS (IFB) DAAJ01-71-B-0545(P1A), ISSUED JUNE 7, 1971, BY HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI.

THE SUBJECT IFB SOUGHT THE PROCUREMENT OF ATTITUDE INDICATORS, FSN 6610 781-8531, APPLICABLE TO UH-1 AIRCRAFT. ITEM 0001 WAS FOR A DEFINITE QUANTITY OF 215 EACH, WHILE ITEM 0002 WAS FOR AN ESTIMATED QUANTITY OF 1500 EACH WHICH, WE ARE INFORMED, WAS FOR A 2-YEAR REQUIREMENT. UNDER BOTH ITEMS, BIDDERS WERE INSTRUCTED TO BID ON A FIRST ARTICLE APPROVAL CONTRACTOR TESTING NOT REQUIRED UNDER BID A, AND FIRST ARTICLE APPROVAL - CONTRACTOR TESTING - REQUIRED UNDER BID B. ITEM 0003 REQUIRED A FIRST ARTICLE TEST REPORT WHICH WAS NOT TO BE SEPARATELY PRICED.

TEN BIDS WERE RECEIVED AND OPENED ON JUNE 28, 1971, WITH YOUR CLIENT AND CONSOLIDATED AIRBORNE SYSTEMS, INC., THE TWO LOW BIDDERS ON THE BASIS OF UNIT PRICE PER ITEM, PRIOR TO ANY EVALUATION OF THE LOWEST OVERALL PRICE TO THE GOVERNMENT WHICH WOULD CONSIDER SUCH FACTORS AS QUALIFICATION FOR WAIVER OF FIRST ARTICLE APPROVAL, PROMPT PAYMENT DISCOUNTS (IF ANY), ETC. PREAWARD SURVEYS WERE REQUESTED ON THE TWO REFERENCED LOW BIDDERS AND BOTH, WE ARE INFORMED, WERE DETERMINED RESPONSIBLE.

THE SUBJECT IFB WAS DEVOID OF A DATA REQUIREMENT OTHER THAN THE FIRST ARTICLE TEST REPORT. THE RECORD STATES THAT THE OMISSION OF A DATA REQUIREMENT FROM THE SOLICITATION WAS NOTED AFTER BID OPENING, DURING EVALUATION OF THE BIDS. THE RECORD SHOWS THAT A MEETING WAS REQUESTED ON AUGUST 18, 1971, BY THE CONTRACTING OFFICER TO DISCUSS OBJECTIONS BY OFFICIALS FROM AVSCOM'S DIRECTORATE FOR TECHNICAL DATA, CATALOGING AND STANDARDIZATION, AGAINST THE PROPOSED AWARD WITHOUT SUCH A DATA PACKAGE. THE OBJECTIONS STATED WERE, IN ESSENCE, THAT THIS END ITEM IS REPAIRABLE EQUIPMENT, WHICH IS MANUFACTURED TO A PERFORMANCE TYPE SPECIFICATION, AND COULD NOT BE SUPPORTED WITHOUT THE DATA TO PROVISION, PROVIDE SPARE PARTS, SERVICE, OPERATING, MAINTENANCE AND OVERHAUL INSTRUCTIONS. WITHOUT SUCH DATA, IT WAS EXPLAINED, THERE COULD BE NO REPAIR OR OVERHAUL DUE TO THE LACK OF SPARE PARTS, TOOLS, OR INSTRUCTIONS. AR 700-19 WAS CITED STATING THAT WHEN ACTION IS TAKEN TO INITIATE THE PROCUREMENT OF AN END ITEM SUBJECT TO PROVISIONING, THE SOLICITATION SHALL INCLUDE ESSENTIAL DATA CONCERNING THE REQUIREMENTS OF SUPPORT ITEMS TO BE PROCURED. IT IS ALSO REPORTED THAT AVSCOM WAS NOT IN POSSESSION OF ANY DATA FROM GUIDANCE TECHNOLOGY, AND DATA PREVIOUSLY FURNISHED BY CONSOLIDATED AIRBORNE SYSTEMS WAS FOR A SIMILAR, BUT NOT IDENTICAL, EQUIPMENT. THEREFORE, DATA WOULD HAVE BEEN NEEDED IN THE EVENT OF AN AWARD TO EITHER GUIDANCE TECHNOLOGY OR CONSOLIDATED AIRBORNE, THE APPARENT LOW BIDDERS. SINCE THE SUBJECT IFB, WITHOUT THE DATA REQUIREMENT, DID NOT INCLUDE ALL FACTORS INVOLVING COST, IT WAS DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CANCEL THE SUBJECT IFB AND READVERTISE WITH THE DATA REQUIREMENTS INCLUDED.

BY LETTERS DATED AUGUST 26, 1971, ALL BIDDERS WERE NOTIFIED THAT THE SUBJECT IFB WAS CANCELLED IN ITS ENTIRETY, AFTER OPENING BUT PRIOR TO AWARD, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 404.1(B)(I) AS BEING INADEQUATE, AND ASPR 2-404.1(B)(IV), FOR FAILING TO PROVIDE FOR CONSIDERATION OF ALL FACTORS OF COST TO THE GOVERNMENT. THOSE LETTERS CITED THE OMISSION OF TECHNICAL DATA AS THE CAUSE OF CANCELLATION, AND ADVISED THAT THE COMPLETE REQUIREMENT FOR THE INDICATOR WOULD BE READVERTISED AND THE BIDDERS WOULD BE AFFORDED THE OPPORTUNITY TO REBID.

IT IS ALSO NOTED THAT THE SUPPLEMENTAL ADMINISTRATIVE REPORT CONTAINS A STATEMENT OF THE CONTRACTING OFFICER, DATED DECEMBER 14, 1971, THAT SUBSEQUENT TO THE CANCELLATION OF THE SUBJECT IFB, IT WAS FOUND THAT 56 PERCENT OF (SIMILAR) INDICATORS BEING DELIVERED UNDER CONTRACTS WITH OTHER SOURCES WERE DEFECTIVE, NECESSITATING THE PREPARATION OF A NEW PROCUREMENT PACKAGE CONTAINING MORE STRINGENT TESTING REQUIREMENTS. THIS DEVELOPMENT, THE CONTRACTING OFFICER CONTENDS, IS FURTHER EVIDENCE OF A SOUND NEED TO RESOLICIT THE ENTIRE REQUIREMENT.

THE CANCELLATION OF THE SUBJECT IFB IS PROTESTED ON THE BASIS THAT SUBSTANTIAL INJURY WILL BE INFLICTED UPON YOUR CLIENT, THE ALLEGED LOW BIDDER, IF THERE IS A READVERTISEMENT AFTER EXPOSURE OF ITS BID PRICES AND, UNDER SUCH CIRCUMSTANCES, A READVERTISEMENT WOULD UNDERMINE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

YOU DISAGREE THAT THE OMISSION OF THE TECHNICAL DATA SPECIFICATION WAS OF SUCH A SUBSTANTIAL NATURE AS TO CONSTITUTE A COGENT REASON FOR DISCARDING ALL BIDS. WE NOTE AN ATTACHED COPY OF A LETTER FROM YOUR CLIENT TO THE CONTRACTING OFFICER, DATED AUGUST 30, 1971, WHICH CONFIRMED A PURPORTED TELEPHONE CONVERSATION OF AUGUST 27, 1971, (AFTER CANCELLATION) IN WHICH YOUR CLIENT OFFERED TO FURNISH THE DATA AT NO EXTRA COST. IN VIEW THEREOF, IT IS CONTENDED THAT THE APPROPRIATE PROCEDURE WOULD BE REINSTATEMENT OF THE CANCELLED IFB AFTER ASKING THE OTHER BIDDERS TO SUPPLY THE TECHNICAL DATA AT NO COST TO THE GOVERNMENT. IN THIS REGARD, WE NOTE YOUR CLIENT'S ALLEGATION, IN ITS LETTER OF AUGUST 31, 1971, TO OUR OFFICE, THAT "CONSOLIDATED AIRBORNE, INC., LEAR SIEGLER, INC., AND ASTRONAUTICS HAVE SUPPLIED THE ATTITUDE INDICATORS SPECIFIED IN THE SUBJECT IFB" WITH THE IMPLICATION BEING THAT THE TECHNICAL DATA REQUIREMENT TO BE INCORPORATED INTO THE READVERTISED IFB HAS ALREADY BEEN SUPPLIED BY THE 2ND, 3RD, AND 4TH LOW BIDDERS, AND THEREFORE NO EXTRA COST WOULD BE INCURRED BY THOSE FIRMS FOR SUPPLYING THE DATA.

CONCERNING THESE CONTENTIONS, THE CONTRACTING OFFICER POINTS OUT THAT AT THE TIME OF YOUR CLIENT'S OFFER TO SUPPLY THE DATA AT NO EXTRA COST, NEITHER YOUR CLIENT NOR ANY OF THE OTHER BIDDERS KNEW THE DETAILS OR EXTENT OF THE DATA THAT WOULD BE REQUIRED, AND THAT ACCEPTANCE OF YOUR CLIENT'S OFFER, UNDER SUCH CIRCUMSTANCES, WOULD BE OF QUESTIONABLE VALIDITY. IT IS ALSO REPORTED THAT THE DATA REQUIREMENTS ARE QUITE EXTENSIVE, CONSISTING OF SPECIFICATIONS, MICROFILM OF ENGINEERING DOCUMENTS, TABULATING CARD, DRAWINGS, ENGINEERING AND ASSOCIATED LISTS AND SELECTION WORK SHEETS FOR PROVISIONING REQUIREMENTS, AND THAT IT IS DIFFICULT TO ESTIMATE THE COST OF SUCH DATA BECAUSE OF THE INTANGIBLE VALUE ASCRIBED THERETO BY MANY FIRMS. ADDITIONALLY, IT IS REPORTED THAT FROM PAST EXPERIENCE IN PROCURING THIS TYPE AND QUANTITY OF DATA WHICH IS NECESSARY TO LOGISTICALLY SUPPORTED ITEMS IN THE FIELD, THE CONTRACTING OFFICER HAD EVERY REASON TO BELIEVE THAT BIDDERS WOULD CHARGE A SUBSTANTIAL RATHER THAN A NOMINAL AMOUNT THEREFOR. WE ALSO NOTE, AS SHOWN ABOVE, THAT DATA WOULD BE REQUIRED EVEN FROM THOSE BIDDERS WHO HAD SUBMITTED DATA ON SIMILAR ITEMS.

IN SUPPORT OF YOUR REQUEST FOR REINSTATEMENT OF THE ORIGINAL IFB, YOU HAVE ALSO CITED 39 COMP. GEN. 834 (1960), 40 COMP. GEN. 561, 563 (1961), AND 40 COMP. GEN. 55 (1960).

PARAGRAPH 10(B) OF STANDARD FORM 33A, INCLUDED IN THE IFB PACKAGE, RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL OFFERS. THE STATUTORY AUTHORITY FOR SUCH A PROVISION IS 10 U.S.C. 2305(C), PERMITTING THE REJECTION OF ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE PUBLIC INTEREST. ASPR 2-404.1(B)(I) PROVIDES THAT AN INVITATION MAY BE CANCELLED AFTER OPENING BUT BEFORE AWARD WHERE INADEQUATE SPECIFICATIONS ARE SET FORTH BY THE INVITATION. IN CONSTRUING THIS PROVISION, WE HAVE HELD THAT THE DETERMINATION WHETHER A COGENT REASON EXISTS FOR CANCELLATION IS A MATTER PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY AND WILL NOT BE DISTURBED IN THE ABSENCE OF CLEAR PROOF OF ABUSE OF DISCRETION. B-173740(1), NOVEMBER 17, 1971. AS IN THE INSTANT CASE, THAT CASE INVOLVED THE OMISSION IN AN IFB OF REQUIREMENTS FOR TEST CAPABILITY AS WELL AS A SPECIFIED ITEM, BOTH OF WHICH THE PROCURING ACTIVITY DETERMINED ESSENTIAL TO ITS MINIMUM NEEDS, AND OUR OFFICE AGREED THAT THIS CONSTITUTED A COMPELLING REASON FOR CANCELLATION.

HERE, THE PROCURING ACTIVITY HAS ADVISED THAT ITS MINIMUM NEEDS INCLUDE THE REPAIR AND OVERHAUL OF THE ITEMS AND THE AVAILABILITY OF SPARE PARTS, AND THAT THE OMITTED DATA IS ESSENTIAL TO SUCH REQUIREMENTS. IN THIS REGARD, WE HAVE STATED THAT WHERE THE PROCUREMENT OF AN UNSUITABLE PRODUCT WOULD RESULT FROM INADEQUATE SPECIFICATIONS, THE CONTRACTING OFFICER WOULD BE DERELICT IN HIS DUTY IF HE FAILED TO CANCEL THE INVITATION. B-167594, SEPTEMBER 5, 1969. THEREFORE, WHERE CANCELLATION OF AN IFB WAS EFFECTED BECAUSE THE INVITATION FAILED TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, SUCH ACTION IS NOT AN ABUSE OF THE DISCRETION ACCORDED THE PROCURING ACTIVITY IN ITS DETERMINATION TO CANCEL. B-165206, JANUARY 8, 1969.

THE ADDITIONAL BASIS UPON WHICH THE INVITATION WAS CANCELLED WAS THAT BY OMITTING THE REQUIREMENT FOR SUCH DATA, THE VALUE OF WHICH IS ESTIMATED IN THE RANGE OF $6,970.00 TO $11,687.50, THE INVITATION THEREBY FAILED TO PROVIDE FOR CONSIDERATION OF ALL FACTORS OF COST TO THE GOVERNMENT, AND THEREFORE CONSTITUTED ANOTHER COGENT REASON FOR CANCELLATION UNDER ASPR 2- 404.1(B)(IV). IN SIMILAR CIRCUMSTANCES, WHERE AN INVITATION FAILED TO PROVIDE FOR CONSIDERATION OF THE COST OF SAMPLE TESTING, WE AGREED THAT SUCH AN INVITATION WAS DEFECTIVE AND REQUIRED CANCELLATION IN ACCORDANCE WITH THE CITED ASPR PROVISION. B 159558, SEPTEMBER 21, 1966.

CONCERNING YOUR ARGUMENT THAT SINCE GUIDANCE TECHNOLOGY OFFERED TO FURNISH THE DATA AT NO EXTRA COST THE CANCELLED BID SHOULD BE REINSTATED AFTER ASKING ALL OF THE OTHER BIDDERS TO SUPPLY THE OMITTED DATA AT NO COST TO THE GOVERNMENT, WE DO NOT BELIEVE THIS CONTENTION GIVES DUE CONSIDERATION TO THE PREJUDICIAL EFFECT UPON OTHER BIDDERS WHICH COULD RESULT FROM YOUR PROPOSED COURSE OF ACTION. BY USING REQUIREMENTS FOR BID EVALUATION WHICH ARE DIFFERENT FROM ACTUAL NEEDS, THE POSSIBILITY ARISES THAT A BIDDER MAY BE FOUND LOW ON THE EVALUATION UNDER AN INADEQUATE INVITATION WHO WOULD NOT HAVE BEEN THE LOWEST BIDDER HAD THE ACTUAL REQUIREMENTS BEEN ADVERTISED. B-171965, MAY 20, 1971. SUCH A POSSIBILITY IS APPLICABLE TO THE INSTANT CASE. WHILE AN EVALUATION OF BIDS ON THE BASIS OF TOTAL COST WAS NOT COMPLETED PRIOR TO CANCELLATION, THE RECORD INDICATES THAT THERE HAS BEEN NO EXPRESSED DISAGREEMENT WITH THE EVALUATION PRESENTED IN YOUR LETTER DATED OCTOBER 11, 1971. IF WE WERE TO ASSUME THAT YOUR EVALUATION IS CORRECT, THEN YOUR CLIENT WOULD BE LOW ON THE INITIAL INVITATION BY ONLY $2,805. HOWEVER, HAD THE INVITATION INCLUDED THE REQUIREMENT FOR DATA IT IS NOT INCONCEIVABLE THAT YOUR CLIENT'S PRICE FOR THE DATA WOULD HAVE EXCEEDED CONSOLIDATED'S PRICE FOR THE DATA BY MORE THAN THE $2,805 DIFFERENCE IN THE TWO LOW BIDS, SINCE CONSOLIDATED MAY HAVE OBTAINED CONSIDERABLE COMPETITIVE ADVANTAGE FROM HAVING PREVIOUSLY FURNISHED THE DATA FOR A SIMILAR, BUT NOT IDENTICAL, ITEM.

WHERE THE ISSUE HAS BEEN PRESENTED AS TO WHETHER AN AWARD COULD BE MADE TO THE LOW BIDDER UNDER THE ADVERTISED SPECIFICATIONS, AND THE OMITTED REQUIREMENTS NEGOTIATED AFTER AWARD, OR WHETHER THE PROCUREMENT SHOULD BE READVERTISED UNDER SPECIFICATIONS INCORPORATING THE OMITTED REQUIREMENTS, WE HAVE HELD THAT THE ONLY PROPER WAY TO DETERMINE THE LOWEST BIDDER IS BY ADVERTISING THE ACTUAL WORK TO BE PERFORMED. THE ADOPTION OF ANY OTHER VIEW WOULD PERMIT CIRCUMVENTION OF THE COMPETITIVE BID REQUIREMENTS AND WOULD BE CONTRARY TO THE INTENT OF THE PROCUREMENT STATUTES. SEE B- 171965, MAY 20, 1971, AND DECISIONS CITED THEREIN.

IN CONSIDERING 39 COMP. GEN. 834 (1960), CITED IN YOUR LETTER OF OCTOBER 11, 1971, AS AUTHORITY FOR REINSTATEMENT OF THE CANCELED INVITATION, WE NOTE THAT IN THE CITED CASE THE CRUCIAL AND DISPOSITIVE FACT WAS THAT THE ONLY OTHER BIDDER WHO MIGHT BE PREJUDICED BY AN AWARD ON THE ORIGINAL INVITATION WITHDREW HIS BID. WE THEREFORE CONCLUDED THAT NEITHER THE COMPETITIVE BID SYSTEM NOR OTHER BIDDERS WOULD BE PREJUDICED BY AN AWARD ON THE ORIGINAL IFB. SINCE THE CIRCUMSTANCES OF THE INSTANT CASE INDICATE THE POSSIBILITY OF SUCH PREJUDICE, WE DO NOT REGARD THE CITED DECISION AS PRECEDENT FOR THE ACTION YOU SUGGEST.

40 COMP. GEN. 563 (1961), WHICH YOU ALSO CITE, INVOLVED A SITUATION WHERE ALL BIDDERS BID WITH FULL KNOWLEDGE OF AN ERROR BY THE GOVERNMENT IN UNDERESTIMATING THE QUANTITY OF ONE OF THE ITEMS UNDER AN IFB. SINCE THE PRICES WERE QUOTED ON THE BASIS OF UNIT PRICES FOR THE ITEM IN ERROR, IT WAS DEMONSTRATED THAT THE LOW BIDDER WOULD HAVE REMAINED THE SAME EVEN IF THE BIDS HAD BEEN EVALUATED ON THE CORRECT QUANTITY ESTIMATE, AND THEREFORE IT WAS DETERMINED THAT NO BIDDER WAS PREJUDICED SO AS TO REQUIRE READVERTISEMENT. IN THE INSTANT CASE, THE BIDDERS WERE NOT BIDDING WITH KNOWLEDGE OF THE REQUIREMENT FOR, OR THE DETAILS OF, THE TECHNICAL DATA, NOR CAN IT BE REASONABLY CONCLUDED FROM THE RECORD THAT THE RELATIVE STANDINGS OF THE BIDDERS WOULD NOT HAVE BEEN AFFECTED IF THE DATA REQUIREMENTS HAD BEEN INCLUDED. CONSEQUENTLY, WE FIND THAT CITED DECISION TO BE LIKEWISE INAPPLICABLE TO THE CIRCUMSTANCES OF THE INSTANT CASE. WITH REFERENCE TO YOUR CITATION OF 40 COMP. GEN. 55 (1960), THAT CASE INVOLVED THE ENACTMENT, AFTER BID OPENING, OF FEDERAL LEGISLATION PROHIBITING THE CONTRACTING FOR FAMILY UNITS IN EXCESS OF A STIPULATED FIGURE, A LIMITATION NOT PROVIDED FOR IN THE IFB. OUR OFFICE CONSENTED TO AN AWARD ON THE BASIS OF THE EXISTING LOW BID, AS OPPOSED TO READVERTISEMENT, BECAUSE A DELAY INCIDENT TO READVERTISEMENT WOULD BE DISADVANTAGEOUS TO THE GOVERNMENT. NEVERTHELESS, OUR DECISION STILL RECOGNIZED THAT IN THE USUAL CASE, WHERE A CHANGE IN SPECIFICATIONS IS REQUIRED AFTER BID OPENING DUE SOLELY TO AN ACT BY THE CONTRACTING AGENCY OR THE BIDDER, AN AWARD ON THE BASIS OF THE ORIGINAL INVITATION WOULD VIOLATE THE ESTABLISHED PRINCIPLES OF SEALED COMPETITIVE BIDDING. HOWEVER, WE REFRAINED FROM APPLICATION OF THAT PRINCIPLE ONLY BECAUSE OF THE UNUSUAL CIRCUMSTANCE THAT THE CHANGE WAS CAUSED BY AN INDEPENDENT SUPERVENING CIRCUMSTANCE NOT WITHIN THE CONTROL OF EITHER THE AGENCY OR THE BIDDERS, AND THAT THE CHANGE WAS SO SMALL THAT ITS EFFECT ON THE LOW BIDS PRECLUDED ANY POSSIBILITY OF CHANGE IN THEIR RELATIVE STANDING. THE INSTANT CASE, THE OMISSION OF THE DATA REQUIREMENT WAS NOT AN INDEPENDENT SUPERVENING CAUSE OUTSIDE THE CONTROL OF EITHER THE AGENCY OR THE BIDDERS, NOR WAS THERE ANY CERTAINTY THAT THE INCLUSION OF THE OMITTED DATA REQUIREMENT WOULD HAVE LEFT THE STANDING OF THE BIDDERS UNCHANGED.

IN VIEW OF THE FOREGOING, WE CONCUR WITH THE PROCURING ACTIVITY'S POSITION THAT THE REASONS FOR CANCELLATION WERE COGENT, AND THAT SUCH ACTION THEREFORE DID NOT CONSTITUTE AN ABUSE OF THE DISCRETION VESTED IN AGENCIES TO MAKE DETERMINATIONS WITH REGARD TO THE CANCELLATION OF INVITATIONS AFTER OPENING BUT PRIOR TO AWARD.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.