B-170174 (1), AUG. 14, 1970

B-170174 (1), AUG. 14, 1970

BID PROTEST -- CANCELLATION AND READVERTISEMENT DENIAL OF PROTEST AGAINST CANCELLATION OF INVITATION FOR WEAPONS PARACHUTE SYSTEMS BY SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE. CANCELLATION OF INVITATION BECAUSE INTENDED DELIVERY SCHEDULE WHICH WAS STATED IN PERMISSIVE TERMS WAS INTENDED TO BE A REQUIRED CONDITION IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AND WILL NOT BE QUESTIONED.

TO PIONEER PARACHUTE COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 13, 23, AND 29, AND AUGUST 3 AND 4, 1970, PROTESTING THAT YOUR COMPANY WAS THE LOW RESPONSIVE, RESPONSIBLE BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F41608-70-B 1250, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, AND THAT THE CANCELLATION OF THAT IFB BY THE AIR FORCE WAS IMPROPER.

THE SUBJECT IFB WAS ISSUED ON MAY 1, 1970, WITH BID OPENING SET FOR JUNE 2, 1970, FOR 1,040 SPECIAL WEAPONS PARACHUTE SYSTEMS, IN ACCORDANCE WITH MIL-P-83255 DATED FEBRUARY 17, 1970. THE ITEMS FOR PROCUREMENT ARE COVERED BY QUALIFIED PRODUCTS LIST NO. 83255-1 DATED MARCH 4, 1970. THE FOLLOWING PROVISIONS RELATIVE TO DELIVERY APPEARED IN THE IFB AS ORIGINALLY ISSUED:

"(A) DELIVERY IS DESIRED AS FOLLOWS, INDICATED IN DAYS AFTER CONTRACTOR'S RECEIPT EITHER OF A FULLY EXECUTED AND BINDING CONTRACT OR OF A WRITTEN NOTICE OF AWARD:

"ITEM 140 DAYS 170 DAYS 200 DAYS

1. 40 40 80 AND CONTINUE AT THE

RATE OF 80 EACH PER

MONTH THEREAFTER

UNTIL COMPLETE.

"(C) IF THE BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET, PROVIDED, IN NO EVENT SHALL THE BIDDER'S DELIVERY SCHEDULE EXTEND BEYOND 30 DAYS AFTER COMPLETION DATE OF EACH INCREMENT SPECIFIED ABOVE, AS BIDS PROPOSING DELIVERY AFTER THAT PERIOD WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. IF THE BIDDER DOES NOT STATE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE WILL APPLY.

"BIDDER'S PROPOSED BEST POSSIBLE DELIVERY IN INCREMENTS AS SPECIFIED IN (A) ABOVE. DAYS DAYS

DAYS"

ON JUNE 1, 1970, THE IFB WAS AMENDED BY MODIFICATION 0001. BID OPENING WAS POSTPONED TO JUNE 30, 1970. AMONG OTHER ALTERATIONS TO THE IFB, THE FOLLOWING CHANGES WERE MADE IN THE DELIVERY PROVISIONS:

"(B.) SCHEDULE SECTION I, PART III - DESIRED DELIVERY IS CHANGED TO:

"(A) ITEM 120 DAYS 150 DAYS 180 DAYS

1 408 40 80 AND CONTINUE AT

THE RATE OF 80

EACH PER MONTH

THEREAFTER UNTIL

COMPLETE.

"(C) - - EXTEND BEYOND 30 DAYS - - IS DELETED."

ON JUNE 10, 1970, MODIFICATION 0002 TO THE IFB WAS ISSUED. WITH RESPECT TO DELIVERY, THIS SECOND AMENDMENT PROVIDED AS FOLLOWS:

"SCHEDULE SECTION I, PART III - DESIRED DELIVERY IS CORRECTED TO READ:

"A. (A) ITEM 120 DAYS 150 DAYS 180 DAYS

1 40 40 80 AND CONTINUE AT

THE RATE OF 80

EACH PER MONTH

THEREAFTER UNTIL

COMPLETE."

ON THE EXTENDED BID OPENING DATE OF JUNE 30, 1970, THREE BIDS WERE RECEIVED. YOUR COMPANY OFFERED A UNIT PRICE OF $939 WITH DELIVERY COMMENCING 120 DAYS AFTER RECEIPT OF CONTRACT OR NOTICE OF AWARD. STEINTHAL & CO., INC., BID A UNIT PRICE OF $878.28, DELIVERIES TO BEGIN 150 DAYS AFTER RECEIPT OF CONTRACT OR NOTICE OF AWARD. SWITLIK PARACHUTE CO., INC., SUBMITTED A UNIT PRICE OF $795; ITS PROPOSED BEST POSSIBLE DELIVERY WAS DELIVERY TO COMMENCE 170 DAYS AFTER RECEIPT OF CONTRACT OR NOTICE OF AWARD.

ON JULY 17, 1970, THE AIR FORCE REJECTED ALL BIDS AND CANCELED THE IFB. BIDDERS WERE ADVISED THAT THE BASIS FOR THIS ACTION WAS AMBIGUITY IN THE DELIVERY SCHEDULE OF THE IFB, AND THAT THERE WOULD BE A RESOLICITATION COVERING THE SAME REQUIREMENT. WE ARE INFORMED THAT THE RESOLICITATION HAS BEEN ACCOMPLISHED UNDER IFB NO. F41608-71-B-0058, AND THAT BID OPENING IS PRESENTLY SCHEDULED FOR AUGUST 14, 1970.

THE CRITERIA ESTABLISHED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) FOR THE CANCELLATION OF AN IFB AFTER BID OPENING ARE SET FORTH IN SECTION 2-404.1. SUBSECTION (A) THEREOF PROVIDES IN PART:

"THE 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. *** " SUBSECTION (B) OF ASPR 2-404.1, RELATING TO THE CIRCUMSTANCES IN WHICH CANCELLATION OF AN IFB IS PERMISSIBLE, INCLUDES THE FOLLOWING:

" *** INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT--

"(I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION;

"(VIII) FOR OTHER REASONS, CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT."

THE ALLEGED RESPONSIVENESS OF A PARTICULAR BID IS NOT RELEVANT TO THE QUESTION OF THE ADEQUACY OF THE INVITATION PURSUANT TO WHICH THAT BID WAS SUBMITTED. THIS PROPOSITION WAS CLEARLY ENUNCIATED IN OUR RECENT DECISION B-169368, APRIL 21, 1970, 49 COMP. GEN. --, AND IS ALSO ILLUSTRATED BY OUR DECISION B-164749, AUGUST 26, 1968. ACCORDINGLY, WE MAY CONSIDER THE BIDS RECEIVED IN THIS INSTANCE ONLY INSOFAR AS THEY MAY ILLUSTRATE THE SUFFICIENCY OR INSUFFICIENCY OF THE IFB.

YOUR POSITION, IN SHORT, IS THAT THE EFFECT OF THE AMENDMENTS TO THE IFB WAS TO ESTABLISH 120-, 150-, 180-DAY DELIVERY AS THE REQUIRED DELIVERY SCHEDULE, EVEN THOUGH IT WAS STILL NOMINALLY ONLY THE DESIRED SCHEDULE. THE POSITION OF STEINTHAL, WHO, LIKE YOU, HAS REVIEWED AND COMMENTED UPON THE ADMINISTRATIVE REPORT, IS SIMPLY: "DESIRED" MEANS "DESIRED," NOTHING MORE OR LESS, AND THUS IT WAS PROPER FOR IT TO SUBMIT A BID WITH DELIVERY ON A 150-, 180-, 210-DAY BASIS.

FOR THE SAKE OF ARGUMENT, WE MIGHT ASSUME THAT EITHER INTERPRETATION IS THE ONLY REASONABLE ONE, AND THAT THERE IS NO AMBIGUITY IN THE AMENDED INVITATION. THE QUESTION OF INTERPRETATION ENTIRELY ASIDE, IT IS VERY CLEAR FROM THE RECORD THAT THE AMENDED DELIVERY PROVISION IS AN INADEQUATE EXPRESSION OF THE GOVERNMENT'S NEEDS. THE CONTRACTING OFFICER HAS STATED THAT DUE TO ADMINISTRATIVE OVERSIGHT, THERE WAS A FAILURE TO CHANGE THE "DESIRED" SCHEDULE IN PARAGRAPH (A) TO A "REQUIRED" SCHEDULE AND A FAILURE TO DELETE PARAGRAPH (C) IN ITS ENTIRETY. INSTEAD OF EFFECTING THE INTENDED CHANGES AND BECAUSE OF AN APPARENT MISUNDERSTANDING BETWEEN THE BUYER AND THE PROCURING CONTRACTING OFFICER, PARAGRAPH (A) CONTINUED TO BE DESIGNATED AS A "DESIRED" SCHEDULE, AND ONLY THE PHRASE "EXTEND BEYOND 30 DAYS" WAS DELETED FROM PARAGRAPH (C). THUS, WE HAVE A SITUATION WHERE REQUIRED DELIVERY IS STATED IN TERMS OF PERMISSIVE DESIRED DELIVERY.

IN THIS CONNECTION, OUR DECISION B-164749, SUPRA, IS INSTRUCTIVE. THAT CASE, INVOLVING A PROCUREMENT OF A LARGE NUMBER OF CASES OF 8 OUNCE CANS OF APPLESAUCE, THE IFB STATED THE PERIODS DURING WHICH DELIVERY OF THE APPLESAUCE WAS "TENTATIVELY SCHEDULED." IT WAS ALSO STATED THAT "IT IS ESSENTIAL THAT SUPPLIES BE DELIVERED IN ACCORDANCE WITH SCHEDULE OF DELIVERY SHOWN." SIX OF THE 12 BIDS RECEIVED INDICATED AN INTENTION NOT TO BEGIN DELIVERY UNTIL SOMETIME AFTER THE PERIOD "TENTATIVELY SCHEDULED" FOR THE INITIAL INCREMENT. THE CONTRACTING OFFICER DETERMINED THAT THE QUOTED DELIVERY PROVISIONS WERE AMBIGUOUS AND DID NOT "REFLECT WITH CERTAINTY AND ACCURACY THE NEEDS OF THE GOVERNMENT TO BE MET WITH RESPECT TO DELIVERY OF THE SUPPLIES." HE ALSO CONCLUDED THAT THE IFB SHOULD BE CANCELED SO THAT "THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY ACCOMPLISHING THE PROCUREMENT ON TERMS WHICH MORE ACCURATELY REFLECT THOSE NEEDS." WE DENIED A PROTEST AGAINST THE CANCELLATION, STATING:

"OUR OFFICE HAS CONSISTENTLY HELD THAT, WHILE THE INTEREST OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRE THAT INVITATIONS FOR BIDS BE CANCELLED ONLY FOR THE MOST COGENT AND COMPELLING REASONS, THERE NECESSARILY IS RESERVED IN THE CONTRACTING OFFICIALS A SUBSTANTIAL AMOUNT OF DISCRETION IN DETERMINING WHETHER OR NOT AN INVITATION SHOULD BE CANCELLED. OUR OFFICE, THEREFORE, WILL NOT OBJECT TO AN INVITATION CANCELLATION UNLESS THERE HAS BEEN A CLEAR ABUSE OF ADMINISTRATIVE DISCRETION. CF. 41 COMP. GEN. 76; *** " A COPY OF B-164749 IS ENCLOSED FOR YOUR CONVENIENCE.

IN VIEW OF THE DISCRETION VESTED IN THE ADMINISTRATIVE AGENCIES IN RESPECT TO CANCELLATION OF SOLICITATIONS IN SITUATIONS SUCH AS INVOLVED HERE, AND SINCE THE RECORD DEMONSTRATES WITH CLARITY THE INSUFFICIENCY OF THE CANCELED IFB AS AN EXPRESSION OF GOVERNMENTAL NEEDS, WE MUST DENY YOUR PROTEST.