B-173534, NOV 11, 1971
Highlights
SECRETARY: FURTHER REFERENCE IS MADE TO THE PROTEST OF STELMA. OUR OFFICE WAS PROVIDED WITH A COPY OF A TELEGRAM DATED OCTOBER 13. WE ARE CLOSING OUR FILE ON THE STELMA PROTEST WITHOUT FURTHER ACTION. YOUR ATTENTION IS DIRECTED TO OUR DECISION 42 COMP. WHEN THE LOW BID WAS INADVERTENTLY ALLOWED TO LAPSE. THE QUESTION PRESENTED TO OUR OFFICE WAS WHETHER AWARD HAD TO BE MADE TO THE LOW BIDDER (WHICH HAD SUBSEQUENTLY OFFERED TO EXTEND ITS BID) NOTWITHSTANDING THE FACT THAT ITS BID HAD NOT BEEN ACCEPTED WITHIN THE TIME IT HAD ORIGINALLY SPECIFIED. THIS CONCLUSION WAS PREMISED ON THE BELIEF THAT THE LOW BIDDER HAD GAINED AN ADVANTAGE OVER ITS COMPETITION. WE HAVE CONSISTENTLY ADHERED TO THE HOLDING OF 42 COMP.
B-173534, NOV 11, 1971
BID PROTEST - BID ACCEPTANCE TIME - EXTENSIONS CONCERNING PROTEST BY STELMA, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO SINGER/TELE-SIGNAL, LOW BIDDER UNDER THE SECOND STEP OF AN IFB ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA. WHERE THE LOW BIDDER HAS REFUSED TO EXTEND ITS BID PAST ITS STATED ACCEPTANCE TIME, IT HAS BEEN HELD, IN ORDER TO PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, THAT AWARD SHOULD BE MADE TO THE SECOND LOW BIDDER. SEE GENERALLY 42 COMP. GEN. 604 (1963) AND B-173622, AUGUST 26, 1971.
TO MR. SECRETARY:
FURTHER REFERENCE IS MADE TO THE PROTEST OF STELMA, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO SINGER/TELE-SIGNAL (SINGER) UNDER SECOND-STEP INVITATION FOR BIDS F34601-71-B-0021, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA).
ON OCTOBER 20, 1971, OUR OFFICE WAS PROVIDED WITH A COPY OF A TELEGRAM DATED OCTOBER 13, 1971, FROM OCAMA TO HEADQUARTERS, UNITED STATES AIR FORCE/SPPM, WHICH STATES THAT SINGER TWICE REFUSED TO EXTEND THE ACCEPTANCE TIME OF ITS BID WHEN REQUESTED TO DO SO. THREE OTHER BIDDERS DID PROVIDE THE REQUESTED TIME EXTENSIONS. IN VIEW OF SINGER'S REFUSAL IN THIS REGARD, WE ARE CLOSING OUR FILE ON THE STELMA PROTEST WITHOUT FURTHER ACTION.
IN THIS REGARD, YOUR ATTENTION IS DIRECTED TO OUR DECISION 42 COMP. GEN. 604 (1963). IN THAT CASE, THE LOW BIDDER SPECIFIED A 20-DAY BID ACCEPTANCE PERIOD WHILE THE SECOND LOW BIDDER SPECIFIED A 60-DAY PERIOD. WHEN THE LOW BID WAS INADVERTENTLY ALLOWED TO LAPSE, THE QUESTION PRESENTED TO OUR OFFICE WAS WHETHER AWARD HAD TO BE MADE TO THE LOW BIDDER (WHICH HAD SUBSEQUENTLY OFFERED TO EXTEND ITS BID) NOTWITHSTANDING THE FACT THAT ITS BID HAD NOT BEEN ACCEPTED WITHIN THE TIME IT HAD ORIGINALLY SPECIFIED. WE CONCLUDED THAT WHILE AN ENFORCEABLE AWARD COULD PROBABLY BE MADE TO THE LOW BIDDER, THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD BEST BE SERVED BY MAKING AWARD TO THE SECOND LOW BIDDER. EXPLAINED SUBSEQUENTLY IN 46 COMP. GEN. 371 (1966), AT PAGE 373, THIS CONCLUSION WAS PREMISED ON THE BELIEF THAT THE LOW BIDDER HAD GAINED AN ADVANTAGE OVER ITS COMPETITION, AFTER BID OPENING, IN THE NATURE OF AN OPTION WHICH ALLOWED IT TO RENEW ITS BID IN SHORT INCREMENTS OR ALLOW IT TO LAPSE DEPENDING ON CURRENT MARKET CONDITIONS.
WHERE SUCH AN UNFAIR COMPETITIVE ADVANTAGE EXISTS, WE HAVE CONSISTENTLY ADHERED TO THE HOLDING OF 42 COMP. GEN., SUPRA. SEE 48 ID. 19 (1968); B- 162000, SEPTEMBER 1, 1967; B-173533, OCTOBER 12, 1971. IN THE PRESENT CASE, WE FEEL THAT THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM DICTATES THAT A LOW BIDDER, WHICH REFUSES TO EXTEND ITS BID, SHOULD BE CONSIDERED AS INELIGIBLE FOR AWARD. SEE B-173622, AUGUST 26, 1971.
THE ENCLOSURES ACCOMPANYING THE REPORT SPPM DATED AUGUST 25, 1971, FROM THE CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, ARE RETURNED HEREWITH.