B-164721, DEC. 20, 1968

B-164721, DEC. 20, 1968

TO SMITH, CURRIE AND HANCOCK:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1968, REQUESTING FURTHER REVIEW OF YOUR PROTEST ON BEHALF OF HARRISON SECURITY SERVICES, INC. (HARRISON) UNDER INVITATION FOR BIDS (IFB) NO. DABC 13-68-B-0089, ISSUED BY HUNTER ARMY AIRFIELD, GEORGIA. THE PROTEST WAS DENIED BY OUR DECISION, DATED NOVEMBER 21, 1968.

IN OUR DECISION WE HELD THAT THE REJECTION OF HARRISON'S LOW BID AS NONRESPONSIVE WAS RRONEOUS; HOWEVER, WE CONCURRED WITH THE ARMY'S DECISION NOT TO AWARD THE CONTRACT TO HARRISON OR ANY OTHER BIDDER BECAUSE THE PROTECTIVE GUARD SERVICE SOUGHT TO BE PROCURED BY THE SUBJECT IFB WAS NO LONGER NEEDED.

IN YOUR LETTER OF NOVEMBER 26, 1968, YOU CLAIM THAT OUR OFFICE FOLLOWED "* * * WHAT IS BELIEVED TO BE A SERIOUS AND UNJUST DEFECT IN THE BID PROTEST PROCEDURE * * *.' IN SUPPORT OF YOUR POSITION THAT SUCH DEFECTIVE PROCEDURE WAS FOLLOWED AND SHOULD BE CORRECTED, YOU STATE THAT WITHOUT PRIOR NOTICE TO THE CONTRACTOR, THE GOVERNMENT SHOULD NOT BE ALLOWED TO SUBSTITUTE LACK OF NEED FOR NONRESPONSIVENESS AS A REASON FOR NOT AWARDING THE CONTRACT. YOU FURTHER CLAIM THAT SUCH SUBSTITUTION IS INHERENTLY UNFAIR AND COMPROMISES OUR BID PROTEST PROCEDURE BECAUSE YOU WERE LED TO BELIEVE THAT BY FOLLOWING IT AND DEMONSTRATING TO OUR OFFICE THE RESPONSIVENESS OF THE HARRISON'S BID, THE CONTRACT WOULD BE AWARDED.

OVER FORTY YEARS AGO, IN COLLEGE POINT BOAT CORP. V U.S., 267 U.S. 12, THE SUPREME COURT HELD THAT ACTION TAKEN BY THE GOVERNMENT AGAINST THE INTEREST OF A CONTRACTOR WOULD NOT ENTITLE THE CONTRACTOR TO DAMAGES IF THERE EXISTED, AT THE TIME, A LEGAL GROUND FOR THE ACTION, EVEN THOUGH THE GOVERNMENT DID NOT RELY UPON THAT GROUND OR WAS NOT EVEN AWARE OF IT. THIS RULE WAS AGAIN APPLIED BY THE COURT OF CLAIMS IN JOHN REINER AND COMPANY, ET. AL. V UNITED STATES, 325 F.2D 438 (1963) WHEREIN JUDGE DAVIS STATED THAT ALTHOUGH THE CONTRACTING OFFICER CANCELLED A CONTRACT ON THE STATED GROUND OF ITS INVALIDITY, WHICH THE COURT FOUND TO BE ERRONEOUS, A GOOD GROUND FOR CANCELLATION DID EXIST IN THE TERMINATION ARTICLE, AND THIS JUSTIFICATION WAS SUFFICIENT TO DEFEAT THE CONTRACTOR'S CLAIM FOR LOSS OF PROFITS. SIMILARLY, IN COASTAL CARGO COMPANY, INC. V U.S., 351 F.2D 1004 (1965), THE COURT HELD THAT THE GOVERNMENT MAY RELY ON THE TERMINATION FOR -CONVENIENCE CLAUSE DESPITE THE FACT THAT IT WAS NOT INVOKED AT THE TIME THE CONTRACT WAS CANCELLED.

IN THE INSTANT CASE, EVEN THOUGH THE RECORD INDICATES THAT AT THE TIME HARRISON'S BID WAS REJECTED AS NONRESPONSIVE, AN ERRONEOUS REASON WAS GIVEN FOR THE ACTION, WE DO NOT BELIEVE THAT FACT CAN AFFECT THE GOVERNMENT'S RIGHT TO CANCEL THE PROCUREMENT ON THE GROUND THAT THE GUARD SERVICES WERE NO LONGER NEEDED. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (III) AND 10 U.S.C. 2305 (C). WHILE IT IS UNFORTUNATE THAT YOU WERE NOT ADVISED SOONER THAT THE GUARD SERVICES WERE NO LONGER NEEDED, WE DO NOT FEEL THAT OUR BID PROTEST PROCEDURES SHOULD OPERATE IN SUCH A WAY AS TO PUT THE INTEREST OF AN INDIVIDUAL BIDDER AHEAD OF THE LEGITIMATE AND PROPER INTERESTS OF THE UNITED STATES. IN THESE CIRCUMSTANCES, WE CAN ONLY AFFIRM OUR CONCLUSION THAT THE SUBJECT IFB WAS CANCELLED PURSUANT TO THE ASPR AND THE APPLICABLE STATUTE.