B-176221, MAR 6, 1973

B-176221: Mar 6, 1973

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A BID WHICH IS NON-RESPONSIVE ONLY BECAUSE THE ADMINISTRATIVE OFFICE INADVERTENTLY NEGLECTED TO SEND A COPY OF A MATERIAL AND SIGNIFICANT AMENDMENT TO THE BIDDER MUST BE REJECTED. SINCE THE FAILURE OF THE GOVERNMENT TO FURNISH THE AMENDMENT DOES NOT WARRANT THE ACCEPTANCE OF A BID WHICH IS THEREBY RENDERED NON RESPONSIVE. PROSPECTIVE CONTRACTORS HAVE NO ENFORCEABLE RIGHT TO RECOVER BID PREPARATION EXPENSES IN THE EVENT THEY ARE NOT AWARDED A CONTRACT. THE COURTS HAVE UPHELD THIS RULE EXCEPT WHERE BIDS ARE NOT RECEIVED IN GOOD FAITH. OR IN CASES WHERE THE AWARD WAS MADE IN AN ARBITRARY AND CAPRICIOUS MANNER WITHOUT REGARD TO STATUTE AND REGULATION. SINCE THE RECORD DOES NOT INDICATE THAT AVTEC OR ITS PREDECESSORS WAS INTENTIONALLY OMITTED FROM SOME PROCUREMENTS OR THAT THEIR OTHER BIDS WERE NOT SOLICITED IN GOOD FAITH.

B-176221, MAR 6, 1973

BID PROTEST - FAILURE TO RECEIVE DOCUMENTS - RECOVERY OF PREPARATION COSTS DENIAL OF CLAIMS BY AVTEC ARISING OUT OF SEVERAL IFBS ISSUED BY THE NAVAL SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PA., EACH COVERING A QUANTITY OF METALLIC, NON-SKID LADDER TREADS. AN INADVERTENT FAILURE TO FURNISH A PROSPECTIVE BIDDER WITH A BID SET DOES NOT PROVIDE A SUFFICIENT BASIS UPON WHICH TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. 34 COMP. GEN. 684 (1955). ALSO, A BID WHICH IS NON-RESPONSIVE ONLY BECAUSE THE ADMINISTRATIVE OFFICE INADVERTENTLY NEGLECTED TO SEND A COPY OF A MATERIAL AND SIGNIFICANT AMENDMENT TO THE BIDDER MUST BE REJECTED, 49 COMP. GEN. 257 (1969), SINCE THE FAILURE OF THE GOVERNMENT TO FURNISH THE AMENDMENT DOES NOT WARRANT THE ACCEPTANCE OF A BID WHICH IS THEREBY RENDERED NON RESPONSIVE. COMP. GEN. 126 (1960). AS A GENERAL RULE, PROSPECTIVE CONTRACTORS HAVE NO ENFORCEABLE RIGHT TO RECOVER BID PREPARATION EXPENSES IN THE EVENT THEY ARE NOT AWARDED A CONTRACT. SEE B-167733, FEBRUARY 9, 1970. THE COURTS HAVE UPHELD THIS RULE EXCEPT WHERE BIDS ARE NOT RECEIVED IN GOOD FAITH, OR IN CASES WHERE THE AWARD WAS MADE IN AN ARBITRARY AND CAPRICIOUS MANNER WITHOUT REGARD TO STATUTE AND REGULATION. SEE HEYER PRODUCTS COMPANY, INC., V. UNITED STATES, 135 CT. CL. 63 (1956). SINCE THE RECORD DOES NOT INDICATE THAT AVTEC OR ITS PREDECESSORS WAS INTENTIONALLY OMITTED FROM SOME PROCUREMENTS OR THAT THEIR OTHER BIDS WERE NOT SOLICITED IN GOOD FAITH, THIS PROTEST MUST BE DENIED.

TO AVTEC:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 9 AND OCTOBER 13, 1972, WITH ENCLOSURES, CONCERNING YOUR CLAIMS UNDER INVITATION FOR BIDS NOS. N00104- 71-B-1373, N00104-71-B-1862, N00104-72-B-0325, N00104-72-B-0385, N00104-72 -B-0607, N00104-72-B-0795, N00104-72-B-1019, AND N00104-72-B 1020, ALL ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA. EACH OF THE SOLICITATIONS COVERED A QUANTITY OF METALLIC, NON-SKID LADDER TREADS. AVTEC IS THE SUCCESSOR CORPORATION TO PLASMA SPRAY CORPORATION AND BART MANUFACTURING COMPANY.

YOU STATE THAT YOU HAVE BEEN DAMAGED IN EXCESS OF $50,000 BY REASON OF CANCELLATION OF SOME OF THE CITED INVITATIONS AND BY LOSS OF AWARDS OF CONTRACTS UNDER OTHER OF THE CITED INVITATIONS TO OTHER BIDDERS. IT IS STATED THAT THE CLAIM IS PREDICATED ON THE FACT THAT THE SPECIFICATIONS CALLED FOR WERE OBSOLETE AND THE REQUIREMENT FOR "G" TYPE TREAD IN ACCORDANCE WITH DRAWING #S6104-860041, VIOLATED ASPR 1 1206-1(B) BY REQUIRING THE TREADS TO BE "CRAVCO OR EQUAL," A PATENTED TYPE OF NON-SKID TREAD. IT IS CONTENDED THAT THE PHRASE "OR EQUAL" CANNOT BE PLACED AFTER THE NAME OF A PROCESS THAT CAN BE OBTAINED FROM ONE SOURCE ONLY.

COPIES OF THE NARRATIVE REPORTS OF THE ADMINISTRATIVE OFFICE WERE FORWARDED TO YOU AND IN COMMENTING THEREON YOU CONTEND THAT THE CONTRACTING OFFICER'S STATEMENT OF FACTS ERRONEOUSLY STATES THAT PLASMA SPRAY CORPORATION (A PREDECESSOR CORPORATION) IN ITS BID ON IFB -0325 OFFERED A MATERIAL DIFFERENT FROM THAT REQUIRED BY THE SPECIFICATIONS; THAT ALTHOUGH THE BART MANUFACTURING CO. (ALSO A PREDECESSOR COMPANY) BID ON IFB -0795 WAS HELD NONRESPONSIVE FOR FAILURE TO RETURN AMENDMENT 0001, THE AMENDMENT WAS NEVER RECEIVED BY THE BIDDER; AND THAT COPIES OF AN EXCHANGE OF CORRESPONDENCE WITH THE CONTRACTING OFFICER ENCLOSED WITH YOUR LETTER TO OUR OFFICE CLARIFIES FURTHER YOUR CLAIM THAT THE PROCUREMENTS WERE IMPROPERLY RESTRICTED TO A PATENTED PRODUCT.

A RESUME OF THE DISPOSITION OF THE SOLICITATIONS MENTIONED IN YOUR LETTER IS AS FOLLOWS:

IFB -1373 WAS ISSUED ON FEBRUARY 8, 1971, AND OPENED ON MARCH 9, 1971. AWARD WAS MADE TO HURON METAL PRODUCTS, THE LOW BIDDER AND A PREVIOUS SUPPLIER OF THE ITEM. ALTHOUGH HURON WAS CONSIDERED RESPONSIVE, IT IS ACKNOWLEDGED THAT THE SPECIFICATIONS WERE UNDER REVIEW FOR POSSIBLE REVISION. PLASMA SPRAY CORPORATION WAS SECOND LOW BIDDER AT A BID PRICE SUBSTANTIALLY HIGHER THAN THE LOW BID.

IFB -1862 WAS ISSUED ON MAY 14, 1971, OPENED ON JUNE 7, 1971, BUT NO OFFER WAS RECEIVED FROM PLASMA SPRAY CORPORATION. ALTHOUGH IT APPEARS THAT YOU HAD SUBMITTED A BIDDER'S MAILING LIST APPLICATION PRIOR TO ISSUANCE OF THE IFB, NO EXPLANATION IS OFFERED FOR THE FAILURE OF YOUR COMPANY TO RECEIVE A BID FORM.

IFB -0325 WAS ISSUED ON SEPTEMBER 29, 1971, AND OPENED ON OCTOBER 29, 1971. YOUR BID WAS LOW ON THIS SOLICITATION. ALTHOUGH YOUR BID WAS RESPONSIVE TO THE INVITATION, IT WAS DETERMINED THAT A REVISED TECHNICAL PACKAGE SHOULD BE DEVELOPED AS THE SPECIFICATIONS WERE OBSOLETE. THEREFORE, IT WAS RECOMMENDED THAT THE SOLICITATION BE CANCELLED AS DEFECTIVE. ON JANUARY 25, 1972, AMENDMENT 0001 WAS ISSUED CANCELLING THIS SOLICITATION.

IFB -0607 WAS ISSUED NOVEMBER 12, 1971, WITH BID OPENING ESTABLISHED FOR DECEMBER 15, 1971. PLASMA SPRAY CORPORATION WAS AGAIN LOW BIDDER, BUT SINCE THE CIRCUMSTANCES RELATING TO THIS SOLICITATION WERE IDENTICAL WITH THOSE OF IFB -0325, THE SOLICITATION WAS CANCELED FOR THE SAME REASON BY AMENDMENT 0001, DATED JANUARY 25, 1972.

IFB -0385 WAS ISSUED ON OCTOBER 13, 1971, WITH BID OPENING SET FOR NOVEMBER 12, 1971. FOUR BIDS WERE RECEIVED WITH HURON METAL PRODUCTS FOUND TO BE THE LOW, RESPONSIVE BIDDER. AWARD WAS MADE TO HURON METAL PRODUCTS AT A UNIT PRICE APPROXIMATELY 30 PERCENT LOWER THAN PLASMA SPRAY CORPORATION, THE SECOND LOW BIDDER.

IFB -0795 WAS ISSUED JANUARY 10, 1972, AND BID OPENING ESTABLISHED FOR FEBRUARY 8, 1972. PRIOR TO BID OPENING, BART MANUFACTURING COMPANY (SUCCESSOR TO PLASMA SPRAY CORP.) ADVISED THE PROCUREMENT OFFICE THAT THE SOLICITATION CALLED FOR THE FURNISHING OF OBSOLETE MATERIAL. THE SOLICITATION WAS AMENDED TO INCLUDE REVISED SPECIFICATIONS AND BID OPENING WAS EXTENDED TO FEBRUARY 22, 1972. BART MANUFACTURING COMPANY SUBMITTED THE LOWEST BID, BUT THE BID WAS DETERMINED TO BE NON RESPONSIVE TO THE SOLICITATION DUE TO FAILURE TO SIGN AND RETURN THE AMENDMENT AS REQUIRED.

IFB -1019, DATED FEBRUARY 24, 1972, WAS A RESOLICITATION OF IFB 0607, BUT WITH REVISED PROCUREMENT SPECIFICATIONS. BID OPENING WAS SET FOR MARCH 27, 1972. AVTEC (SUCCESSOR COMPANY TO BART MANUFACTURING COMPANY) SUBMITTED THE LOWEST BID OF THE THREE BIDS RECEIVED. HOWEVER, BY LETTER DATED MARCH 24, 1972, FROM BART MANUFACTURING COMPANY (PRIOR TO BID OPENING), ATTENTION WAS CALLED TO THE FACT THAT THE NON-SKID MATERIAL AND METHOD OF APPLICATION PROVIDED FOR IN THE SPECIFICATION DRAWING AS "CRAVCO OR EQUAL" WAS RESTRICTIVE IN THAT THE SPECIFICATION COULD BE MET ONLY BY USE OF THE PATENTED "CRAVCO" ITEM. YOUR CONTENTION WAS REFERRED TO THE TECHNICAL BRANCH WHO ADVISED THAT AVTEC'S METAL BONDED MATERIAL WAS FUNCTIONALLY EQUAL TO THE CRAVCO NON SKID MATERIAL BUT NOT IN MATERIAL COMPOSITION. HOWEVER, IT WAS DETERMINED THAT THE CRAVCO OR EQUAL DESCRIPTION WAS RESTRICTIVE AND FUTURE SOLICITATIONS WOULD INCLUDE FUNCTIONAL AND MATERIAL SPECIFICATIONS NOT SO RESTRICTED. IN VIEW THEREOF, COUNSEL RECOMMENDED CANCELLATION OF THE SOLICITATION AS DEFECTIVE. ACCORDINGLY THE SOLICITATION WAS CANCELLED.

IFB -1020 WAS ALSO ISSUED ON FEBRUARY 24, 1972, WITH BID OPENING SCHEDULED FOR MARCH 27, 1972, AS A RESOLICITATION OF THE PREVIOUSLY CANCELED IFB -0325. THIS SOLICITATION INCLUDED REVISED SPECIFICATIONS. ALTHOUGH AVTEC WAS LOW BIDDER, IT WAS ASCERTAINED THAT THE CIRCUMSTANCES RELATING TO THIS SOLICITATION WERE IDENTICAL WITH THOSE OF IFB -1019. THEREFORE, THIS SOLICITATION WAS ALSO CANCELED.

CONCERNING IFB -1862, WHERE YOU CONTEND THAT NO BID WAS SUBMITTED BECAUSE YOU RECEIVED NO BID SET THE RECORD SHOWS THAT FIVE OFFERS WERE RECEIVED AND OPENED AND AWARD MADE TO THE LOW, RESPONSIVE BIDDER.

OUR OFFICE HAS HELD THAT AN INADVERTENT FAILURE TO FURNISH A PROSPECTIVE BIDDER WITH AN INVITATION FOR BIDS DOES NOT CONSTITUTE A SUFFICIENT BASIS UPON WHICH TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE INVITATION. COMP. GEN. 684 (1955); B-135553, MAY 5, 1958; B 138281, FEBRUARY 13, 1959, AND B-171388, FEBRUARY 19, 1971. IN THE ABSENCE OF ANY INDICATION OF A DELIBERATE INTENT TO EXCLUDE YOU FROM BIDDING, WE SEE NO BASIS FOR QUESTIONING THE AWARD.

ALTHOUGH IT IS REGRETTABLE THAT THE REJECTION OF YOUR BID UNDER IFB 0795, BECAUSE OF FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT WHICH REVISED THE SPECIFICATIONS, APPARENTLY RESULTED FROM YOUR FAILURE TO RECEIVE THE AMENDMENT, WE HAVE HELD THAT A BID WHICH IS NON-RESPONSIVE ONLY BECAUSE THE ADMINISTRATIVE OFFICE INADVERTENTLY NEGLECTED TO SEND A COPY OF A MATERIAL AND SIGNIFICANT AMENDMENT TO THE BIDDER MUST BE REJECTED. COMP. GEN. 257, 262 (1969). WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT BIDDERS ARE TIMELY FURNISHED SUCH AMENDMENTS, THE FACT THAT THERE IS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID WHICH IS THEREBY RENDERED NON-RESPONSIVE. 40 COMP. GEN. 126 (1960).

SINCE YOU WERE NOT THE LOW BIDDER UNDER IFBS -1373 AND -0385, AWARDS WERE PROPERLY MADE TO THE BIDDERS SUBMITTING THE LOWEST RESPONSIVE BIDS AS REQUIRED BY LAW.

REMAINING FOR CONSIDERATION ARE THE FOUR SOLICITATIONS THAT WERE CANCELED. PARAGRAPH 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS CONTAINED IN EACH BID SET PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ALL BIDS. ARMED SERVICES PROCUREMENT REGULATION 2-404.1(B)(I) SPECIFICALLY PROVIDES FOR CANCELLATION WHERE THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS. IFBS -0325 AND -0607 WERE CANCELED BECAUSE THEY WERE CONSIDERED DEFECTIVE AS THEY CONTAINED OBSOLETE SPECIFICATIONS AND IN ORDER TO INCORPORATE REVISED SPECIFICATIONS IN NEW SOLICITATIONS. IFBS - 1019 AND -1020 WERE RESOLICITATIONS OF THE TWO IFBS MENTIONED ABOVE. THESE TWO SOLICITATIONS WERE CANCELED BECAUSE THE SPECIFICATIONS WERE AGAIN DETERMINED DEFECTIVE. THE RECORD SHOWS THAT THE "DEFECT" RESULTED FROM THE USE OF THE PHRASE "CRAVCO OR EQUAL" ON BUREAU OF SHIPS DRAWING S1604-860041 WITH REFERENCE TO THE NON-SKID FIBER GLASS TREAD, WHICH YOU QUESTIONED AS RESTRICTIVE. IT WAS DETERMINED THAT THE DRAWING CONTAINED INSUFFICIENT DATA FOR DETERMINATION OF AN "EQUAL" AND RESTRICTED PROCUREMENT TO CRAVCO. THEREFORE, THE DRAWING IS TO BE REVISED BY DELETING THE "CRAVCO OR EQUAL" REFERENCE AND INCLUDING FUNCTIONAL AND MATERIAL SPECIFICATIONS. WHEN THE FOREGOING IS ACCOMPLISHED, WE ARE ADVISED THAT THE REQUIREMENTS WILL BE RESOLICITED.

CONCERNING YOUR CLAIMS FOR RECOVERY OF EXPENSES FOR PREPARATION OF THE BIDS CITED ABOVE, OUR OFFICE HAS HELD THAT AS A GENERAL PROPOSITION PROSPECTIVE CONTRACTORS HAVE NO ENFORCEABLE RIGHT TO RECOVER SUCH EXPENSES IN THE EVENT THEY ARE NOT AWARDED A CONTRACT. SEE B-167733, FEBRUARY 9, 1970, AND B-169425, JUNE 12, 1970. THE COURTS HAVE UPHELD OUR POSITION EXCEPT IN CASES WHERE BIDS WERE NOT INVITED IN GOOD FAITH, OR IN CASES WHERE THE AWARD WAS MADE IN AN ARBITRARY AND CAPRICIOUS MANNER WITHOUT REGARD TO STATUTE AND REGULATION. SEE HEYER PRODUCTS COMPANY, INC., V. UNITED STATES, 135 CT. CL. 63 (1956) AND KECO INDUSTRIES, INC., V. UNITED STATES, 428 F.2D 1233 (1970). IN THE HEYER PRODUCTS CASE, THE COURT STATED AT P. 71 AS FOLLOWS:

IT GOES WITHOUT SAYING THAT NOT EVERY UNSUCCESSFUL BIDDER IS ENTITLED TO RECOVER THE COST OF PUTTING IN HIS BID. RECOVERY CAN BE HAD IN ONLY THOSE CASES WHERE IT CAN BE SHOWN BY CLEAR AND CONVINCING PROOF THAT THERE HAS BEEN A FRAUDULENT INDUCMENT FOR BIDS, WITH THE INTENTION, BEFORE THE BIDS WERE INVITED OR LATER CONCEIVED, TO DISREGARD THEM ALL EXCEPT THE ONES FROM BIDDERS TO ONE OF WHOM IT WAS INTENDED TO LET THE CONTRACT, WHETHER HE WAS THE LOWEST RESPONSIBLE BIDDER OR NOT. IN OTHER WORDS, IT MUST BE SHOWN THAT BIDS WERE NOT INVITED IN GOOD FAITH, BUT AS A PRETENSE TO CONCEAL THE PURPOSE TO LET THE CONTRACT TO SOME FAVORED BIDDER, OR TO ONE OF A GROUP OF PREFERRED BIDDERS, AND WITH THE INTENT TO WILFULLY, CAPRICIOUSLY, AND ARBITRARILY DISREGARD THE OBLIGATION TO LET THE CONTRACT TO HIM WHOSE BID WAS MOST ADVANTAGEOUS TO THE GOVERNMENT.

THERE IS NO INDICATION IN THE RECORD BEFORE US THAT BIDS WERE NOT SOLICITED IN GOOD FAITH OR THAT THERE WAS ANY ACTION ON THE PART OF THE CONTRACTING OFFICER WHICH COULD BE CONSIDERED ARBITRARY OR CAPRICIOUS.

ACCORDINGLY, YOUR CLAIMS FOR BID PREPARATION COSTS ARE DENIED.