B-157941, FEB. 4, 1966

B-157941: Feb 4, 1966

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J. VAN SICKLE COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 3. OUR DECISION STATED THAT WHILE AWARDS ON ITEMS 6 AND 7 WERE IMPROPERLY MADE AND SHOULD HAVE BEEN MADE TO YOUR COMPANY. CANCELLATION OF THE CONTRACTS AWARDED ON THOSE ITEMS WOULD NOT BE IN THE GOVERNMENT'S BEST INTEREST SINCE WORK WAS COMPLETE ON ONE CONTRACT AND VIRTUALLY COMPLETE ON THE OTHER. YOU STATE THAT AN AIRMAIL POSTCARD WAS SENT TO THE CONTRACTING OFFICER ON AUGUST 24. FOUR DAYS AFTER RECEIPT OF THE CONTRACTING OFFICER'S LETTER TO YOU ADVISING THAT YOUR BID WAS UNSUCCESSFUL. YOU FURTHER STATE THAT WHEN NO ANSWER WAS RECEIVED TO YOUR POSTCARD BY OCTOBER 14. YOU CONTEND THAT YOUR PROTEST WOULD HAVE BEEN RECEIVED IN TIME TO CANCEL THE AWARDS IF THE CONTRACTING OFFICER HAD ANSWERED YOUR INITIAL POSTCARD AND OFFER THIS AS JUSTIFICATION FOR YOUR REQUEST THAT YOUR BID COSTS BE REFUNDED.

B-157941, FEB. 4, 1966

TO L. J. VAN SICKLE COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 3, 5 AND 7, 1966, SUBMITTED IN RESPONSE TO OUR DECISION OF DECEMBER 30, 1965, WHICH REJECTED YOUR PROTEST OF THE AWARD OF ITEMS 6 AND 7 OF IFB NO. ANC/T) 23-195-65-354 TO OTHER BIDDERS. OUR DECISION STATED THAT WHILE AWARDS ON ITEMS 6 AND 7 WERE IMPROPERLY MADE AND SHOULD HAVE BEEN MADE TO YOUR COMPANY, CANCELLATION OF THE CONTRACTS AWARDED ON THOSE ITEMS WOULD NOT BE IN THE GOVERNMENT'S BEST INTEREST SINCE WORK WAS COMPLETE ON ONE CONTRACT AND VIRTUALLY COMPLETE ON THE OTHER.

YOUR LETTERS REQUEST REIMBURSEMENT OF YOUR BID PREPARATION COSTS AND ALSO REQUEST AN EXPLANATION OF THE CITATIONS IN THE LAST PARAGRAPH OF OUR DECISION. YOU STATE THAT AN AIRMAIL POSTCARD WAS SENT TO THE CONTRACTING OFFICER ON AUGUST 24, 1965, REQUESTING THE NAMES OF THE SUCCESSFUL BIDDERS AND THE AMOUNTS OF THEIR BIDS, FOUR DAYS AFTER RECEIPT OF THE CONTRACTING OFFICER'S LETTER TO YOU ADVISING THAT YOUR BID WAS UNSUCCESSFUL. YOU FURTHER STATE THAT WHEN NO ANSWER WAS RECEIVED TO YOUR POSTCARD BY OCTOBER 14, 1965, YOU SENT A SECOND POSTCARD AND APPARENTLY ON THE SAME DATE CALLED THE CONTRACTING OFFICER AND LODGED A VERBAL PROTEST AFTER YOU HAD OBTAINED THE DESIRED INFORMATION FROM HIM. YOU CONTEND THAT YOUR PROTEST WOULD HAVE BEEN RECEIVED IN TIME TO CANCEL THE AWARDS IF THE CONTRACTING OFFICER HAD ANSWERED YOUR INITIAL POSTCARD AND OFFER THIS AS JUSTIFICATION FOR YOUR REQUEST THAT YOUR BID COSTS BE REFUNDED.

IT HAS REPEATEDLY BEEN HELD BOTH BY THIS OFFICE AND BY THE COURTS THAT THE ADVERTISING STATUTES WERE ENACTED FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE BIDDER, AND UNLESS IT CAN BE SHOWN THAT HIS BID WAS NOT HONESTLY CONSIDERED, THE UNSUCCESSFUL BIDDER HAS NO ENFORCEABLE CLAIM FOR BID PREPARATION COSTS. SEE HEYER PRODUCTS COMPANY, INC. V. THE UNITED STATES, 147 CT.CL. 256. THIS IS SO EVEN IN CASES, SUCH AS YOURS, WHERE AWARD HAS BEEN MADE IN ERROR. THERE IS NO INDICATION THAT THE CONTRACTING OFFICER DID NOT CONSIDER YOUR BID HONESTLY. INSTEAD, IT IS OUR OPINION THAT AN HONEST MISINTERPRETATION WAS MADE WITH REGARD TO THE QUESTIONED PORTION OF THE BID. THEREFORE, EVEN IF YOUR PROTEST HAD BEEN MADE IMMEDIATELY AFTER THE CONTRACT WAS AWARDED, THERE WOULD BE NO AUTHORITY FOR REFUNDING YOUR BID PREPARATION COSTS. SIMILARLY, THE FAILURE OF THE CONTRACTING OFFICER TO ACKNOWLEDGE YOUR POSTCARD OF AUGUST 24, IF IT WAS IN FACT EVER RECEIVED BY HIM, CREATED NO OBLIGATION ON THE PART OF THE GOVERNMENT TO REIMBURSE YOUR BID COSTS AS THE BURDEN WAS ON YOU TO TAKE WHATEVER ADDITIONAL STEPS WERE NECESSARY AFTER SUBMISSION OF THE POSTCARD, TO MAKE YOUR PROTEST BEFORE OBLIGATIONS HAD BEEN INCURRED UNDER THE CONTRACT. SINCE A SUBSTANTIAL PART OF THE WORK HAD BEEN COMPLETED BY THE TIME YOUR PROTEST WAS RECEIVED, IT WAS DETERMINED THAT THE CONTRACT SHOULD NOT BE DISTURBED, AND YOUR PROTEST THEREFORE WAS DENIED.

THE TWO CASES CITED IN THE LAST PARAGRAPH OF OUR DECISION WERE MENTIONED AS AUTHORITY FOR THE STATEMENT THAT CANCELLATION OF THE AWARDS OF ITEMS 6 AND 7 WOULD NOT BE IN THE GOVERNMENT'S INTEREST. WHILE THE PROTESTS IN THESE TWO CASES WERE MADE ON DIFFERENT GROUNDS THAN YOURS, BOTH CONTAIN STATEMENTS SIMILAR TO THE ONE IN THE LAST PARAGRAPH OF OUR DECISION.

FOR THE REASONS LISTED ABOVE, YOUR REQUEST FOR REIMBURSEMENT OF BID PREPARATION COSTS MUST BE DENIED.

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