B-174919, APR 17, 1972

B-174919: Apr 17, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NORDBERG'S OFFER INDICATED A MATERIAL QUALIFICATION FOR WHICH ITS BID WAS PROPERLY DETERMINED NONRESPONSIVE. DELAVAL PROPOSED COMPLIANCE WITH THE DELIVERY REQUIREMENTS OF THE IFB AND ITS ABILITY TO COMPLY IS A MATTER OF RESPONSIBILITY TO BE DETERMINED BY THE PROCURING ACTIVITY PRIOR TO AWARD. DELAVAL'S "VEE" ENGINE IS ACCEPTABLE SO LONG AS IT MEETS THE LITERAL SPECIFICATIONS OF THE SOLICITATION. PROTESTANT'S CONTENTION THAT THE INVITATION WAS AMBIGUOUS SHOULD HAVE BEEN BROUGHT TO THE CONTRACTING OFFICER'S ATTENTION PRIOR TO BID OPENING. DELAVAL'S FAILURE TO PROVIDE A DETAILED WEIGHT REPORT WAS NOT DETRIMENTAL TO OTHER COMPETITORS AND GAO CANNOT OBJECT TO THE CONTRACTING OFFICER'S DECISION THAT THE COMPANY'S FAILURE WAS IMMATERIAL AND HAD NO EFFECT ON BID EVALUATION.

B-174919, APR 17, 1972

BID PROTEST - RESPONSIVENESS - RESPONSIBILITY - PROPOSED CANCELLATION OF IFB DECISION DENYING THE PROTEST OF NORDBERG, A DIVISION OF REX CHAINBELT, INC., AGAINST THE PROPOSED AWARD OF A CONTRACT TO DELAVAL TURBINES, INC., UNDER AN IFB ISSUED BY THE DEPARTMENT OF TRANSPORTATION, COAST GUARD YARD, CURTIS BAY, BALTIMORE, MD., FOR TWO SHIP SETS OF MAIN PROPULSION DIESEL ENGINES, GENERATORS, AND CONTROL SYSTEMS. NORDBERG'S OFFER INDICATED A MATERIAL QUALIFICATION FOR WHICH ITS BID WAS PROPERLY DETERMINED NONRESPONSIVE. HOWEVER, DELAVAL PROPOSED COMPLIANCE WITH THE DELIVERY REQUIREMENTS OF THE IFB AND ITS ABILITY TO COMPLY IS A MATTER OF RESPONSIBILITY TO BE DETERMINED BY THE PROCURING ACTIVITY PRIOR TO AWARD. SIMILARLY, DELAVAL'S "VEE" ENGINE IS ACCEPTABLE SO LONG AS IT MEETS THE LITERAL SPECIFICATIONS OF THE SOLICITATION. PROTESTANT'S CONTENTION THAT THE INVITATION WAS AMBIGUOUS SHOULD HAVE BEEN BROUGHT TO THE CONTRACTING OFFICER'S ATTENTION PRIOR TO BID OPENING, TOGETHER WITH AN EXPLANATION OF HOW SUCH AMBIGUITY WORKED TO THE PARTICULAR DISADVANTAGE OF NORDBERG. B 156025, MAY 4, 1965. DELAVAL'S FAILURE TO PROVIDE A DETAILED WEIGHT REPORT WAS NOT DETRIMENTAL TO OTHER COMPETITORS AND GAO CANNOT OBJECT TO THE CONTRACTING OFFICER'S DECISION THAT THE COMPANY'S FAILURE WAS IMMATERIAL AND HAD NO EFFECT ON BID EVALUATION. WITH REGARD TO NORDBERG'S FINAL CONTENTION, IT SHOULD BE NOTED THAT THE CONTRACTING OFFICER HAS BROAD DISCRETION IN DECIDING WHETHER TO CANCEL A SOLICITATION, AND THE COMP. GEN. WILL NOT INTERFERE WITH SUCH DETERMINATION UNLESS HE HAS CLEARLY ABUSED HIS DISCRETION BY ARBITRARY ACTION. B-169172, AUGUST 11, 1970. IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.

TO SELLERS, CONNER & CUNEO:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 14, 1972, AND PRIOR CORRESPONDENCE, ON BEHALF OF NORDBERG, A DIVISION OF REX CHAINBELT, INC., PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. H-93210-1212-0, ISSUED BY THE DEPARTMENT OF TRANSPORTATION, U.S. COAST GUARD YARD, CURTIS BAY, BALTIMORE, MARYLAND. AWARD UNDER THIS INVITATION IS BEING HELD IN ABEYANCE PENDING OUR DECISION.

ON OCTOBER 12, 1971, THE INVITATION WAS ISSUED FOR TWO SHIP SETS OF MAIN PROPULSION DIESEL ENGINES, GENERATORS AND CONTROL SYSTEMS. BIDS WERE OPENED ON DECEMBER 23, 1971, AND THE THREE BIDS RECEIVED WERE AS FOLLOWS:

NORDBERG $2,759,265

DELAVAL TURBINE, INC. 3,148,500

FAIRBANKS MORSE POWER SYSTEMS 4,672,081

THE GOVERNMENT ESTIMATE WAS $3,550,000. THE CONTRACTING OFFICER DECLARED DELAVAL TO BE THE ONLY RESPONSIVE BIDDER.

THE INVITATION SPECIFIES THAT THE REQUIRED DELIVERY OF THE FIRST SHIP SET IS 265 DAYS AFTER AWARD AND THE SECOND SHIP SET IS TO BE DELIVERED WITHIN 400 DAYS AFTER AWARD. THE INVITATION ALSO STATES THAT BIDS OFFERING DELIVERY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE REQUIRED DELIVERY PERIOD SPECIFIED WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED UNLESS NO RESPONSIVE BIDS ARE RECEIVED. NORDBERG QUALIFIED ITS BID BY OFFERING TO DELIVER THE FIRST SHIP SET 305 DAYS AFTER AWARD.

YOU CONTEND THAT THE BID OF DELAVAL IS NONRESPONSIVE AND THAT THE INVITATION SHOULD BE CANCELED. THE PRINCIPAL REASONS FOR NORDBERG'S PROTEST ARE STATED IN YOUR LETTER OF FEBRUARY 28, 1972, AND ARE DISCUSSED BELOW.

YOU STATE THAT ALTHOUGH NORDBERG'S BID CONTAINED A STATEMENT EXPRESSLY QUALIFYING DELIVERY, DELAVAL'S BID WAS IMPLICITLY QUALIFIED AND THEREFORE NONRESPONSIVE BECAUSE OF THE IMPOSSIBILITY OF ANY BIDDER MEETING THE DELIVERY SCHEDULE CONTAINED IN THE INVITATION. THE BASIS FOR THIS CONTENTION IS YOUR STATEMENT THAT ALL THREE BIDDERS HAD TO RELY ON GENERAL ELECTRIC AS THE ONLY PRACTICAL SOURCE OF THE GENERATORS AND GENERAL ELECTRIC COULD OFFER DELIVERY TO NORDBERG NO SOONER THAN 252 DAYS. CONSIDERING THE TIME NECESSARY TO PERFORM THE CONTRACTUALLY REQUIRED TESTING OF THE ENGINES AT THE CONTRACTOR'S PLANT, YOU STATE THAT IT WOULD BE IMPOSSIBLE FOR NORDBERG OR ANY OTHER BIDDER TO DELIVER THE EQUIPMENT IN ACCORDANCE WITH THE DELIVERY SCHEDULE CONTAINED IN THE INVITATION. HOWEVER, DELAVAL DID NOT TAKE ANY EXCEPTION TO THE REQUIRED DELIVERY SCHEDULE AND THEREFORE EVIDENCED ITS INTENT TO BE BOUND BY THE DELIVERY SCHEDULE. THEREFORE DELAVAL'S BID ON ITS FACE IS RESPONSIVE TO THE DELIVERY REQUIREMENTS. WHETHER THE BIDDER WILL BE ABLE TO MEET THE REQUIREMENTS IS A MATTER OF RESPONSIBILITY FOR THE CONTRACTING AGENCY TO DECIDE PRIOR TO AWARD OF THE CONTRACT. SINCE NORDBERG QUALIFIED ITS BID WITH REGARD TO THE DELIVERY SCHEDULE WHICH IS A MATERIAL REQUIREMENT, ITS BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE. IN VIEW OF THIS CONCLUSION, WE NEED NOT CONSIDER THE OTHER AREAS OF NORDBERG'S BID WHICH YOU CONTEND DID NOT RENDER ITS BID NONRESPONSIVE.

YOU CONTEND THAT DELAVAL'S BID SHOULD BE DETERMINED TO BE NONRESPONSIVE ON THE GROUND THAT THE DELAVAL ENGINE CANNOT COMPLY WITH PARAGRAPH 1.2 OF THE SPECIFICATIONS WHICH PROVIDES AS FOLLOWS:

"TYPE - EACH PROPULSION UNIT SHALL BE COMPOSED OF A DC GENERATOR DIRECTLY DRIVEN BY A DIESEL ENGINE WITH SHAFTING THROUGH A TRANSVERSE WATERTIGHT BULKHEAD. ALL UNITS SHALL BE NEW EQUIPMENT MANUFACTURED IN THE UNITED STATES AND OF CURRENT DESIGN. THE HORSEPOWER RATING PER CYLINDER OF THE ENGINES OFFERED SHALL NOT EXCEED THAT OF ENGINES OF THE SAME MODEL SERIES PREVIOUSLY SOLD FOR COMMERCIAL OR GOVERNMENT SERVICE. THE UNITS SHALL HAVE BEEN USED SATISFACTORILY IN COMMERCIAL OR MILITARY MARINE SERVICE FOR NOT LESS THAN 2 YEARS."

YOU STATE THAT THE ENGINE OFFERED BY DELAVAL HAS AN "IN-LINE" CONFIGURATION, WHEREAS THE ONLY ENGINES PREVIOUSLY SOLD BY DELAVAL HAVING THE SAME OR GREATER BRAKE HORSEPOWER PER CYLINDER HAD A "VEE" CONFIGURATION. YOU THEREFORE STATE THAT ALTHOUGH DELAVAL HAS CLASSIFIED BOTH TYPES OF ENGINES IN THE SAME MODEL SERIES, THE ENGINES SHOULD NOT BE SO CONSIDERED BECAUSE OF THE DIFFERENCE IN CONFIGURATION. IN THAT CONNECTION, YOU REFER TO CERTAIN AUTHORITIES WHO HAVE STATED THAT THE "IN- LINE" AND "VEE" ENGINES ARE NOT SIMILAR ENGINES.

FIRST, WE DO NOT AGREE THAT A MATTER OF RESPONSIVENESS IS INVOLVED. BIDDERS WERE NOT REQUIRED TO FURNISH WITH THE BID INFORMATION SHOWING THAT THERE WAS COMPLIANCE WITH PARAGRAPH 1.2 AND DELAVAL STATED NO EXCEPTION TO THE REQUIREMENT. THE QUESTION WHETHER DELAVAL WILL BE ABLE TO COMPLY WITH THE SPECIFICATION REQUIREMENT IS ONE OF RESPONSIBILITY SINCE IT PERTAINS TO WHETHER IT WILL BE ABLE TO COMPLY WITH THE SPECIFICATION REQUIREMENT TO WHICH IT HAS STATED NO EXCEPTION. BUT WHETHER IT IS A MATTER OF RESPONSIVENESS OR RESPONSIBILITY IS NOT PERTINENT HERE, SINCE DELAVAL HAS CLASSIFIED BOTH TYPES OF ENGINES IN THE SAME MODEL SERIES AND DELAVAL MEETS THE LITERAL REQUIREMENTS OF PARAGRAPH 1.2. FURTHER, THE COAST GUARD HAS INDICATED THAT IT DID NOT INTEND THE LANGUAGE IN PARAGRAPH 1.2 TO BE CONSTRUED ANY MORE RESTRICTIVELY THAN ITS PLAIN TERMS. IN THAT REGARD THE CONTRACTING OFFICER HAS ADVISED OUR OFFICE THAT DURING THE DESIGN PHASE OF THE RE-ENGINING OF THE WIND CLASS ICEBREAKERS BOTH NORDBERG AND DELAVAL REPRESENTATIVES WERE CONSULTED TO ASCERTAIN WHAT ENGINES WERE AVAILABLE WHICH WOULD SUIT THE NEED. AS A RESULT OF THE COAST GUARD'S INQUIRIES AND SUBSEQUENT DISCUSSIONS, THE SPECIFICATIONS WERE WRITTEN TO INCLUDE THE PARTICULAR ENGINE EACH COULD BID AND DID BID.

THE CONTRACTING OFFICER HAS ADVISED THAT THESE DESIGN PHASE DISCUSSIONS REVEALED THAT NO ENGINE MANUFACTURER HAD AN ENGINE AVAILABLE WHICH COULD MEET THE COAST GUARD'S REQUIREMENTS PLUS THE COAST GUARD'S USUAL EXPERIENCE REQUIREMENT OF TWO YEARS SATISFACTORY MARINE SERVICE AT THE REQUIRED HORSEPOWER RATING. THEREFORE, PARAGRAPH 1.2 OF THE SPECIFICATION WAS WRITTEN TO PERMIT NORDBERG AND DELAVAL EACH TO BID ENGINES, WHICH AS BASIC ENGINES HAD TWO YEARS OF MARINE EXPERIENCE AT A LOWER HORSEPOWER RATING. EACH COMPANY ALSO HAD SOLD ENGINES OF THE SAME CYLINDER SIZE (EITHER IN-LINE OR VEE) FOR OTHER APPLICATIONS AT THE REQUIRED HORSEPOWER PER CYLINDER RATING. THE CONTRACTING OFFICER ADVISES THAT SINCE THIS WAS THE BEST INDICATOR AVAILABLE IT WAS INCORPORATED IN THIS PARAGRAPH OF THE SPECIFICATIONS TO ALLOW EACH ENGINE MANUFACTURER TO QUALIFY.

IN YOUR LETTER TO OUR OFFICE DATED MARCH 14, 1972, YOU RAISE FOR THE FIRST TIME THE CONTENTION THAT PARAGRAPH 1.2 OF THE SPECIFICATIONS IS AMBIGUOUS. IN THIS REGARD WE NOTE THAT NORDBERG DID NOT RAISE ANY QUESTIONS REGARDING THE INTERPRETATION OF PARAGRAPH 1.2 AT ANY TIME PRIOR TO BID OPENING. IF IN FACT NORDBERG CONSIDERED THE SPECIFICATIONS TO BE AMBIGUOUS, THIS MATTER SHOULD HAVE BEEN BROUGHT TO THE ATTENTION OF THE PROCURING ACTIVITY PRIOR TO BID OPENING. IN THAT CONNECTION, IN B-156025, MAY 4, 1965, OUR OFFICE STATED:

"WHILE IT IS INCUMBENT UPON A GOVERNMENT AGENCY TO STATE THE MATERIAL REQUIREMENTS OF A PROCUREMENT IN A CLEAR AND UNAMBIGUOUS MANNER, WE RECOGNIZE THAT 100 PERCENT CLARITY AS TO ALL ASPECTS OF EVERY SOLICITATION IS UNLIKELY. IT IS NOT UNREASONABLE TO EXPECT THAT IN ANY EXTENSIVE RETROSPECTIVE EXAMINATION BY AN UNSUCCESSFUL COMPETITOR OF A VOLUMINOUS SOLICITATION SUCH AS THE RFP HERE CONCERNED, WHICH IN TURN INCORPORATES ADDITIONAL LENGTHY DOCUMENTS AND MATERIAL, MINOR INCONSISTENCIES CAN BE FOUND ON WHICH TO SUBMIT A PROTEST. WE FEEL THAT GOOD FAITH AND OBSERVANCE OF THE SPIRIT OF COMPETITIVE SOLICITATION, AS WELL AS SOUND BUSINESS PRACTICE ON THE PART OF COMPETITORS FOR GOVERNMENT CONTRACTS, DICTATE THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SOLICITATION AND CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR SUBMISSION OF PROPOSALS OR BIDS. *** THE SUBMISSION OF A PROTEST AFTER SUCH TIME, ON MATTERS WHICH THE COMPETITOR CONSIDERED MATERIAL TO HIS QUOTATION OR BID AND ON WHICH HE COULD REASONABLY BE EXPECTED TO HAVE HAD CLARIFIED DURING THE PERIOD IN WHICH HE WAS COMPUTING HIS PRICE, NECESSARILY RAISES A QUESTION AS TO THE SINCERITY OF THE PROTEST, FREQUENTLY OPERATES AS A HINDERANCE TO THE PROCURING ACTIVITY IN OBTAINING URGENTLY NEEDED ITEMS IN A TIMELY MANNER, INCREASES THE ADMINISTRATIVE COSTS OF THE PROCUREMENT, AND SERIOUSLY DETRACTS FROM THE BENEFITS DERIVED BY THE GOVERNMENT FROM THE COMPETITION."

IN ADDITION TO HAVING FAILED TO MAKE A TIMELY PROTEST TO THIS OFFICE CONCERNING ANY UNRESOLVED AMBIGUITIES OR OTHER POSSIBLE DEFECTS IN THE INVITATION, YOU HAVE NOT DEMONSTRATED THAT ANY POSSIBLE AMBIGUITIES OR OTHER DEFECTS WORKED TO THE PARTICULAR DISADVANTAGE OF NORDBERG.

YOUR NEXT CONTENTION IS THAT DELAVAL'S BID WAS NONRESPONSIVE ON ITS FACE SINCE IT FAILED TO PROVIDE THE DETAILED WEIGHT REPORT REQUIRED BY PARAGRAPH 8.3 OF THE SPECIFICATION. PARAGRAPH 8.3 OF THE SPECIFICATIONS, ENTITLED "LIMITING DIMENSIONS," PROVIDES THAT "THE BIDDER SHALL FURNISH A DETAILED REPORT OF WEIGHTS OF ALL MACHINERY TO BE FURNISHED." ALTHOUGH DELAVAL FAILED TO FURNISH THE DETAILED WEIGHT REPORT WITH ITS BID, THE CONTRACTING OFFICER WAIVED THIS FAILURE AS BEING AN INCONSEQUENTIAL DEFECT WHICH HAD NO BEARING ON BID EVALUATION. YOU CONTEND THAT THE CONTRACTING OFFICER'S DECISION TO WAIVE THIS FAILURE WAS ARBITRARY, CAPRICIOUS AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. YOU CONTEND THAT THE DETAILED REPORT OF WEIGHTS IS VITAL TO BID EVALUATION.

PARAGRAPH 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES IN PERTINENT PART AS FOLLOWS:

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT."

OUR OFFICE HAS STATED THAT UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF A PROVISION OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH A PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SEE 40 COMP. GEN. 321 (1960). THE RECORD INDICATES THAT DELAVAL SUBMITTED THE ESTIMATED WEIGHT OF ITS ENGINE AND EQUIPMENT WITH ITS BID IN COMPLIANCE WITH THE REQUIREMENT SET FORTH IN PARAGRAPH 13.1 OF THE SPECIFICATIONS. THE CONTRACTING OFFICER REPORTS THAT THE DETAILED WEIGHT INFORMATION REFERRED TO IN PARAGRAPH 8.3 IS FOR INFORMATION ONLY AND HAS NO BEARING ON BID EVALUATION. WE NOTE THAT THE INVITATION DID NOT PROVIDE THAT THE DETAILED WEIGHTS OF ALL MACHINERY WERE TO BE CONSIDERED IN EVALUATING BIDS. IN VIEW THEREOF AND SINCE DELAVAL'S FAILURE TO FURNISH DETAILED WEIGHT INFORMATION WITH ITS BID DOES NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO NORDBERG, WE FIND NO BASIS FOR OBJECTING TO THE CONTRACTING OFFICER'S WAIVER WITH REGARD TO THIS MATTER.

YOU CONTEND THAT THE INVITATION SHOULD BE CANCELLED AND THE PROCUREMENT RESOLICITED, SINCE NORDBERG'S BID IS APPROXIMATELY $400,000 LESS THAN THE ONLY OTHER RESPONSIVE BID RECEIVED. PARAGRAPH 1-2.404-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) SETS FORTH THE REGULATIONS GOVERNING CANCELLATION OF AN INVITATION. SECTION (A) OF THAT PARAGRAPH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT, AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. *** " SECTION (B) OF THAT PARAGRAPH STATES:

"INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD, AND ALL BIDS REJECTED, WHERE SUCH ACTION IS CONSISTENT WITH SEC 1-2.404- 1(A) AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT CANCELLATION IS IN THE BEST INTEREST OF THE GOVERNMENT FOR REASONS SUCH AS THE FOLLOWING:

"(7) THE BIDS RECEIVED DID NOT PROVIDE COMPETITION WHICH WAS ADEQUATE TO INSURE REASONABLE PRICES." THE CONTRACTING OFFICER STATES THAT EVEN THOUGH NORDBERG EXCLUDED REQUIRED EQUIPMENT FROM ITS BID AND DELAVAL DID NOT, DELAVAL'S BID PRICE WAS ONLY ABOUT 14 PERCENT HIGHER THAN NORDBERG. FURTHER DELAVAL'S PRICE IS APPROXIMATELY 12 PERCENT LOWER THAN THE GOVERNMENT ESTIMATE. IN VIEW THEREOF THE CONTRACTING OFFICER IS SATISFIED WITH THE DELAVAL PRICE AND HAS DECIDED NOT TO CANCEL THE INVITATION. CONTRACTING OFFICER IS CLOTHED WITH BROAD POWER OF DISCRETION IN DECIDING WHETHER AN IFB SHOULD OR SHOULD NOT BE CANCELED AND OUR OFFICE WILL NOT INTERFERE WITH SUCH A DETERMINATION UNLESS ABUSED BY ARBITRARY ACTION. COMP. GEN. 748, 751 (1968) AND B-169172, AUGUST 11, 1970.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS FOR QUESTIONING AN AWARD UNDER THE SUBJECT INVITATION. ACCORDINGLY, THE PROTEST IS DENIED.