B-174681, JAN 18, 1972

B-174681: Jan 18, 1972

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WHICH WILL BE PARTIALLY FUNDED BY A GRANT MADE PURSUANT TO TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963. THE ORIGINAL SOLICITATION WAS CANCELLED BECAUSE ALL BIDS RECEIVED EXCEEDED THE AMOUNT OF FUNDS AUTHORIZED FOR THE PROJECT. IT SHOULD BE NOTED THAT AN INVITATION ISSUED BY A GOVERNMENT AGENCY MAY BE CANCELLED IF SUFFICIENT FUNDS ARE NOT AVAILABLE. THERE IS NO BASIS FOR QUESTIONING THE ACTIONS OF THE COLLEGE. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 6. THE AMOUNT OF WHICH WILL BE PARTIALLY FUNDED UNDER A GRANT MADE PURSUANT TO TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963. MAKES AWARDS FROM A PARTICULAR STATE'S ALLOTMENT TO THOSE APPLICANT INSTITUTIONS WITHIN THE STATE WHOSE APPLICATIONS ARE CERTIFIED BY THE STATE TO HAVE GREATER PRIORITY THAN ANY OTHER APPLICATIONS WITHIN THE STATE ON THE BASIS OF CRITERIA SET FORTH IN THE STATE'S PLAN.

B-174681, JAN 18, 1972

BID PROTEST - PROCUREMENT BY FEDERAL GRANTEE - CANCELLATION OF SOLICITATION - INSUFFICIENT FUNDS DENIAL OF PROTEST AGAINST THE PROPOSED AWARD BY SARAH LAWRENCE COLLEGE OF A CONTRACT FOR THE CONSTRUCTION OF A NEW LIBRARY, WHICH WILL BE PARTIALLY FUNDED BY A GRANT MADE PURSUANT TO TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963, 20 U.S.C. 711. THE ORIGINAL SOLICITATION WAS CANCELLED BECAUSE ALL BIDS RECEIVED EXCEEDED THE AMOUNT OF FUNDS AUTHORIZED FOR THE PROJECT. THE PROCEDURES APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS BY THE FEDERAL GOVERNMENT DO NOT APPLY TO PROCUREMENTS WHEREIN THE GOVERNMENT PARTICIPATES MERELY AS THE GRANTOR OF A PORTION OF THE FUNDS. HOWEVER, IT SHOULD BE NOTED THAT AN INVITATION ISSUED BY A GOVERNMENT AGENCY MAY BE CANCELLED IF SUFFICIENT FUNDS ARE NOT AVAILABLE. B-157419, OCTOBER 18, 1965. UNDER THE CIRCUMSTANCES OF THIS CASE, THERE IS NO BASIS FOR QUESTIONING THE ACTIONS OF THE COLLEGE.

TO GRAMERCY CONTRACTORS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 6, 1971, PROTESTING AGAINST THE PROPOSED AWARD BY THE SARAH LAWRENCE COLLEGE, BRONXVILLE, NEW YORK, TO THE OR-DI CONSTRUCTION COMPANY OF A CONTRACT FOR THE CONSTRUCTION OF THE NEW SARAH LAWRENCE COLLEGE LIBRARY, HEW PROJECT NO. 4-2-00378-0, THE AMOUNT OF WHICH WILL BE PARTIALLY FUNDED UNDER A GRANT MADE PURSUANT TO TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963, 20 U.S.C. 711.

UNDER THE STATUTE, THE UNITED STATES COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, MAKES AWARDS FROM A PARTICULAR STATE'S ALLOTMENT TO THOSE APPLICANT INSTITUTIONS WITHIN THE STATE WHOSE APPLICATIONS ARE CERTIFIED BY THE STATE TO HAVE GREATER PRIORITY THAN ANY OTHER APPLICATIONS WITHIN THE STATE ON THE BASIS OF CRITERIA SET FORTH IN THE STATE'S PLAN. THE STATE ALSO CERTIFIES TO THE COMMISSIONER, THE FEDERAL SHARE OF THE PROJECT DEVELOPMENT COST TO WHICH THE APPLICANT IS ENTITLED UNDER THE STATE PLAN BUT NOT TO EXCEED 33 1/3 PERCENT OF THE ELIGIBLE COSTS IN THE CATEGORY IN WHICH SARAH LAWRENCE COLLEGE QUALIFIES.

AN AWARD IS THEN MADE BY THE COMMISSIONER ON THE BASIS OF SUCH CERTIFICATION FROM A STATE COMMISSION, WHICH AWARD IS SUBJECT TO CERTAIN TERMS AND CONDITIONS SET FORTH IN THE REGULATIONS IMPLEMENTING THE STATUTE AND GRANT DOCUMENT. IN CONNECTION WITH THE AWARD OF A CONTRACT FOR CONSTRUCTION AND THE ACQUISITION AND INSTALLATION OF BUILT IN EQUIPMENT, THE REGULATIONS (45 CFR 170.3) PROVIDE THAT, EXCEPT IN SPECIAL CASES WHERE ALTERNATE CONTRACTING PROCEDURES ARE APPROVED, SUCH CONTRACTS "SHALL BE AWARDED ON THE BASIS OF COMPETITIVE BIDDING OBTAINED BY PUBLIC ADVERTISING."

THE RECORD INDICATES THAT THE SARAH LAWRENCE COLLEGE REQUESTED BIDS FOR THE CONSTRUCTION OF A NEW LIBRARY BUILDING; THAT 13 BASE BIDS RANGING FROM $2,348,882 TO $2,942,000 WERE RECEIVED AND OPENED ON NOVEMBER 15, 1971; THAT THE LOWEST BASE BID WAS RECEIVED FROM YOUR FIRM; AND THAT SINCE THE AMOUNT OF YOUR LOW BASE BID EXCEEDED THE LATEST COST ESTIMATE FOR THE NEW LIBRARY BY $229,226, THE COLLEGE DECIDED TO REJECT ALL BIDS AND REDESIGN AND REBID THE PROJECT. THE RECORD ALSO INDICATES THAT THE COLLEGE INSTRUCTED THE ARCHITECT TO REDUCE COSTS WITHOUT CHANGING THE SCOPE OF THE PROJECTS AND THAT BIDDING DOCUMENTS WERE REVISED TO REDUCE COSTS AND BID INVITATIONS CONTAINING REVISED SPECIFICATIONS WERE SENT TO ALL BIDDERS WHICH HAD SUBMITTED BIDS INITIALLY AND ANY OTHER BIDDERS REQUESTING TO BID. IN RESPONSE TO THE REVISED INVITATION FOR BIDS, FOUR BASE BIDS RANGING FROM $2,137,000 TO $2,778,869 WERE RECEIVED AND OPENED ON DECEMBER 9, 1971. THE LOWEST BASE BID IN THE AMOUNT OF $2,137,000 WAS SUBMITTED BY THE OR-DI CONSTRUCTION CORPORATION AND THE SECOND LOWEST BASE BID IN THE AMOUNT OF $2,238,882 WAS SUBMITTED BY YOUR FIRM. AWARD IS BEING WITHHELD BY THE COLLEGE PENDING OUR DECISION ON THE PROTEST.

YOU CONTEND THAT NO COMPELLING REASON EXISTS FOR THE REJECTION OF ALL BIDS UNDER THE ORIGINAL INVITATION, NOTWITHSTANDING THE FACT THAT THE AMOUNT OF YOUR LOW BID EXCEEDED THE AMOUNT OF THE COLLEGE'S BUDGET ESTIMATE FOR THE PROJECT. YOU ALLEGE THAT THE READVERTISEMENT OF THE PROJECT CANNOT IN ANY WAY APPRECIABLY AFFECT THE BASE BID SINCE THE CHANGES IN THE SPECIFICATIONS ARE TOO INSUBSTANTIAL; THAT THE ONLY WAY PRICES COULD BE LOWER WOULD BE ON THE BASIS OF CUT-THROAT COMPETITION RESULTING FROM AN EXPLOITATION OF ALL BIDS; AND THAT TO ALLOW THIS PROCEDURE WOULD DESTROY THE INTEGRITY OF COMPETITIVE BIDDING SYSTEM.

IN THE INSTANT CASE, THE PROCUREMENT IS NOT BEING MADE BY A FEDERAL AGENCY, BUT BY A HIGHER EDUCATIONAL INSTITUTION. THE RATHER RIGID PROCEDURES APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS BY THE FEDERAL GOVERNMENT DO NOT APPLY TO NON-FEDERAL PROCUREMENTS WHEREIN THE FEDERAL GOVERNMENT PARTICIPATES MERELY AS A GRANTEE OF FUNDS TO PARTIALLY SUPPORT THE PROCUREMENTS WHICH ARE EFFECTED BY LOCAL AGENCIES OR INSTITUTIONS.

THE RECORD PRESENTED TO OUR OFFICE INDICATES THAT THE ORIGINAL INVITATION WAS CANCELED BY THE SARAH LAWRENCE COLLEGE BECAUSE SUFFICIENT FUNDS FOR THE CONSTRUCTION OF THE LIBRARY BUILDING WERE NOT AVAILABLE. ALTHOUGH YOUR PROTEST INVOLVES A NON-FEDERAL PROCUREMENT, WE INVITE YOUR ATTENTION TO OUR DECISION B-157419, OCTOBER 18, 1965, WHEREIN WE HELD THAT AN INVITATION FOR BIDS COULD BE CANCELED AFTER BID OPENING IF SUFFICIENT FUNDS FOR THE PROCUREMENT ARE NOT AVAILABLE. IN OUR DECISION WE POINTED OUT THAT THE COURTS HAVE CONSISTENTLY HELD THAT A REQUEST FOR BIDS BY THE GOVERNMENT DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST RESPONSIVE BID. SEE, ALSO, 17 COMP. GEN. 554 (1938); 26 ID. 49 (1946); 37 ID. 760 (1958); 41 ID. 709, 711 (1962). APPLYING THIS RATIONALE TO THE INSTANT CASE, WE HAVE NO BASIS FOR QUESTIONING THE DECISION OF THE SARAH LAWRENCE COLLEGE TO CANCEL THE ORIGINAL INVITATION FOR BIDS. FURTHERMORE, THE OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, WHICH OFFICE UNDER TITLE I OF THE HIGHER EDUCATION FACILITIES ACT OF 1963, HAS THE RESPONSIBILITY FOR APPROVING GRANTS UNDER THE ACT AND FOR DETERMINING COMPLIANCE WITH THE REGULATIONS PROMULGATED THEREUNDER, HAS ADVISED OUR OFFICE THAT IT CONCURS IN THE ACTION OF THE SARAH LAWRENCE COLLEGE IN REJECTING ALL BIDS RECEIVED IN RESPONSE TO THE ORIGINAL INVITATION AND READVERTISING THE PROJECT AS WAS DONE.

THE RECORD INDICATES THAT THE ORIGINAL INVITATION WAS CANCELED BY THE SARAH LAWRENCE COLLEGE BECAUSE SUFFICIENT FUNDS WERE NOT AVAILABLE TO AWARD A CONTRACT FOR THE CONSTRUCTION OF THE LIBRARY BUILDING ON THE BASIS OF YOUR BID PRICE. IT ALSO INDICATES THAT THE COLLEGE MADE CERTAIN CHANGES IN THE SPECIFICATIONS FOR THE PURPOSE OF LOWERING THE COST OF THE LIBRARY BUILDING. FURTHER, IN CONNECTION WITH FEDERAL PROCUREMENTS, OUR OFFICE HAS STATED THAT AN ATTEMPT TO NEGOTIATE WITH THE LOW BIDDER CHANGES AMOUNTING TO A SUBSTANTIAL DEVIATION FROM THE ORIGINAL SPECIFICATIONS WOULD BE PREJUDICIAL TO THE OTHER BIDDERS SUBMITTING RESPONSIVE BIDS UNDER THAT INVITATION SINCE THE CONTRACT AFTER NEGOTIATION WOULD NOT BE THE SAME AS THAT OFFERED THE OTHER BIDDERS UNDER THE INVITATION. 49 COMP. GEN. 584, 586 (1970).

FOR THE REASONS SET FORTH ABOVE, THE PROTEST IS DENIED.