B-123491, B-124279, JUN. 24, 1955

B-123491, B-124279, JUN. 24, 1955

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER DATED JUNE 15, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING US TO REVIEW INVITATION FOR BIDS NOS. P108 AND P109, ISSUED BY THE BUREAU OF INDIAN AFFAIRS, FOR THE LEASING OF PASSENGER-CARRYING VEHICLES TO PROVIDE TRANSPORTATION SERVICES AT CHEROKEE, NORTH CAROLINA, AND ALBUQUERQUE, NEW MEXICO, DURING THE FISCAL YEAR 1956, AND TO ADVISE WHETHER, IN OUR OPINION, THE SPECIFICATIONS ARE SO DRAWN AS TO PERMIT EXECUTION OF A PROPER CONTRACT FOR THE SERVICES.

THE NECESSITY FOR THE PRESENT INVITATIONS AROSE FROM THE HOLDING IN OUR DECISION OF APRIL 27, 1955, B-123491, THAT THE THEN EXISTING AUTOMOBILE RENTAL CONTRACT FOR THE SAME SERVICES WAS VOID FOR FAILURE TO COMPLY WITH THE ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES. SUBSEQUENTLY, TEMPORARY ARRANGEMENTS WERE MADE TO PROVIDE FOR TRANSPORTATION SERVICES AT THE TWO LOCATIONS.

THE INVITATIONS INVOLVED WERE ISSUED ON JUNE 2, 1955, AND PROVIDED THAT THE BIDS WOULD BE OPENED ON JUNE 17, 1955. THE INVITATIONS, INSOFAR AS HERE MATERIAL, REQUESTED BIDS FOR THE LEASING OF A TOTAL OF 39 PASSENGER- CARRYING VEHICLES, 4-DOOR SEDANS AND STATION WAGONS, WITH CERTAIN SPECIFIED ACCESSORIES, AND REQUIRED DELIVERY TO BE MADE F.O.B. CHEROKEE, NORTH CAROLINA, AND ALBUQUERQUE, NEW MEXICO. THE SPECIFICATIONS PROVIDE: "IT IS REQUIRED THAT ALL VEHICLES BE DELIVERED BY JULY 1, 1955. BIDDERS UNABLE TO MEET THIS DELIVERY SCHEDULE WILL NOT MEET THE REQUIREMENTS OF THIS INVITATION.' THE SPECIFICATIONS FURTHER PROVIDE: "BIDDERS SHALL STATE THE LEAST NUMBER OF CALENDAR DAYS WITHIN WHICH DELIVERY WILL BE MADE AFTER RECEIPT OF FORMAL PURCHASE ORDER * * *.'

IT IS RECOGNIZED THAT IT IS THE DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICES TO DRAW SPECIFICATIONS WHICH WILL MEET THEIR REQUIREMENTS AND THAT IF AN EMERGENCY EXISTS, PURCHASES MAY EVEN BE MADE WITHOUT ADVERTISING. HOWEVER, IT HAS BEEN CONSISTENTLY HELD THAT SPECIFICATIONS SHOULD BE SO DRAWN AS TO ALLOW ALL INTERESTED BIDDERS AN OPPORTUNITY TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT. IN THE INSTANT CASE, A MAXIMUM OF 14 DAYS WAS ALLOWED FOR THE DELIVERY OF THE VEHICLES WITH THE REQUIRED ACCESSORIES, EVEN IF AWARD WERE MADE ON THE DAY OF THE OPENING.

ALTHOUGH DUE TO THE INVALIDATION OF THE PRIOR LEASE AGREEMENT, VEHICLES ARE BEING OBTAINED ON A TEMPORARY BASIS PENDING THE EXECUTION OF A VALID LEASE, IT IS OUR OPINION THAT SUCH FACT DID NOT WARRANT SUCH STRINGENT LIMITATION OF THE TIME ALLOWED PROSPECTIVE BIDDERS TO MAKE DELIVERY. THAT THE LIMITATION IMPOSED WAS TOO UNREALISTIC TO MEET THE REQUIREMENTS OF OPEN COMPETITION IS SUBSTANTIATED BY THE FACT THAT THE ABSTRACT OF BIDS RECEIVED IN RESPONSE TO THE INVITATIONS SHOWS THAT FOUR OF THE FIVE FIRMS WHO SUBMITTED BIDS WERE UNABLE TO MEET THE DELIVERY REQUIREMENT. THE ONE FIRM WHICH OFFERED TO MEET THE DELIVERY REQUIREMENT OFFERED TO MAKE DELIVERY WITHIN 9 DAYS AT ALBUQUERQUE, NEW MEXICO, AND WITHIN 5 DAYS AT CHEROKEE, NORTH CAROLINA,AFTER RECEIPT OF FORMAL PURCHASE ORDER. THUS, WITH RESPECT TO ALBUQUERQUE, EVEN THAT BID COULD NOT NOW BE ACCEPTED SO AS TO REQUIRE THE BIDDER TO DELIVER BY JULY 1, 1955.

UNDER THE CIRCUMSTANCES, WE CONCLUDE THAT THE TIME LIMITATION PROVIDED IN THE INVITATIONS FOR DELIVERY WAS INSUFFICIENT TO ALLOW THE FREE AND OPEN COMPETITION REQUIRED BY SECTION 3709, REVISED STATUTES, AND THAT, THEREFORE, NO AWARD SHOULD BE MADE UNDER EITHER INVITATION.