B-218228.5, AUG 8, 1986, OFFICE OF GENERAL COUNSEL
Highlights
YOU ARE CONCERNED THAT OUR HOLDING ENDORSES GIVING A FIRM A SECOND OPPORTUNITY TO BID AFTER CONTRACT AWARD. THAT THE EFFECT OF OUR DECISION IS TO DESTROY COLBAR AS A VIABLE GOVERNMENT CONTRACTOR. UNITED WAS NOT AFFORDED A SECOND BID OPPORTUNITY AFTER AWARD OF THE CONTRACT. UNITED'S INTENDED BID PRICE WAS EVIDENT FROM ITS ORIGINAL BID DOCUMENTS. ITS INTENDED BID PRICE ON THE OMITTED ITEM WAS DETERMINABLE WITHIN AN EXTREMELY NARROW RANGE FROM THE PATTERN OF PRICING IN THE BID ITSELF. WE SIMPLY CONCLUDED THAT AN OBVIOUS CLERICAL ERROR OF OMISSION SHOULD NOT BE CONVERTED TO A MATTER OF RESPONSIVENESS WHERE A LOW BIDDER'S INTENDED PRICE IS DETERMINABLE FROM THE FACE OF THE BID ITSELF AND THE BIDDER CLEARLY INTENDS TO OBLIGATE ITSELF.
B-218228.5, AUG 8, 1986, OFFICE OF GENERAL COUNSEL
PRECIS-UNAVAILABLE
THE HONORABLE JIM SASSER:
UNITED STATES SENATE
WE REFER TO YOUR LETTER OF JULY 11, 1986, CONCERNING OUR DECISION IN UNITED FOOD SERVICES, INC., B-218228.3, DEC. 30, 1985, 65 COMP.GEN. ***, 85-2 CPD PARA. 727, AFF'D, COLBAR, INC.-- RECONSIDERATION, B-218288.4, FEB. 13, 1986, 65 COMP.GEN. ***, 86-1 CPD PARA. 156. WE HELD THAT UNITED IMPROPERLY HAD BEEN DENIED AN AWARD AS THE LOW RESPONSIVE BIDDER ON THE PROCUREMENT, WHICH INVOLVED MEETING THE DEPARTMENT OF THE ARMY'S NEED FOR FOOD SERVICES AT FORT KNOX, KENTUCKY, AND WE RECOMMENDED THAT THE ARMY TERMINATE THE CONTRACT THAT HAD BEEN AWARDED TO COLBAR AND AWARD A CONTRACT TO UNITED.
YOU ARE CONCERNED THAT OUR HOLDING ENDORSES GIVING A FIRM A SECOND OPPORTUNITY TO BID AFTER CONTRACT AWARD, THUS UNDERMINING THE FAIRNESS OF THE COMPETITIVE PROCUREMENT SYSTEM, AND THAT THE EFFECT OF OUR DECISION IS TO DESTROY COLBAR AS A VIABLE GOVERNMENT CONTRACTOR, SINCE THE FIRM HAS NOT COMPETED FOR OTHER CONTRACTS WHILE HOLDING THE ONE AT FORT KNOX. YOU REQUEST THAT WE REVERSE OUR DECISION AND RECONSIDER OUR RECOMMENDATION FOR ACTION, AND SUGGEST THAT THE FAIREST WAY TO PROCEED WOULD BE TO RECOMPETE THE CONTRACT.
WE APPRECIATE YOUR CONCERNS, BUT WE DO NOT BELIEVE THEY WARRANT CHANGING OUR DECISION. UNITED WAS NOT AFFORDED A SECOND BID OPPORTUNITY AFTER AWARD OF THE CONTRACT; RATHER, UNITED'S INTENDED BID PRICE WAS EVIDENT FROM ITS ORIGINAL BID DOCUMENTS. UNITED CLEARLY HAD INTENDED TO OBLIGATE ITSELF TO PROVIDE THE SERVICES IN QUESTION, AND ITS INTENDED BID PRICE ON THE OMITTED ITEM WAS DETERMINABLE WITHIN AN EXTREMELY NARROW RANGE FROM THE PATTERN OF PRICING IN THE BID ITSELF.
WE BELIEVE OUR DECISION NEITHER UNDERMINES THE FAIRNESS OF THE PROCUREMENT PROCESS NOR SENDS A GENERAL SIGNAL TO OTHER CONTRACTORS THAT THEY CAN GET ILLEGAL SECOND BIDDING CHANCES. OUR DECISION SPECIFICALLY RECOGNIZES THE GENERAL RULE THAT A BID MUST BE REJECTED AS NONRESPONSIVE IF IT DOES NOT INCLUDE A PRICE FOR EVERY ITEM REQUESTED BY THE SOLICITATION. WE SIMPLY CONCLUDED THAT AN OBVIOUS CLERICAL ERROR OF OMISSION SHOULD NOT BE CONVERTED TO A MATTER OF RESPONSIVENESS WHERE A LOW BIDDER'S INTENDED PRICE IS DETERMINABLE FROM THE FACE OF THE BID ITSELF AND THE BIDDER CLEARLY INTENDS TO OBLIGATE ITSELF.
ALTHOUGH IT IS UNFORTUNATE THAT, AS YOU STATE, IN RELIANCE ON KEEPING THE FORT KNOX CONTRACT COLBAR HAS NOT BID ON OTHER FOOD SERVICE CONTRACTS, UNITED WAS THE CONTRACTOR LEGALLY ENTITLED TO THE AWARD OF THE FORT KNOX CONTRACT FROM THE OUTSET AND AT A SUBSTANTIAL COST SAVINGS TO THE FEDERAL GOVERNMENT COMPARED TO COLBAR'S OFFER.
WE MET WITH MR. HAWKS OF YOUR STAFF ON AUGUST 6 TO DISCUSS OUR DECISION. WE WOULD BE HAPPY TO PARTICIPATE IN ANY FURTHER MEETINGS YOU WISH OR PROVIDE YOU WITH ANY OTHER ASSISTANCE WE CAN CONCERNING THIS MATTER.