B-145643, OCT. 19, 1961
Highlights
TO AMERICAN BOSCH ARMA CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. WHEREIN IT WAS HELD THAT THERE WAS NO VALID BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE U.S. MANY OF THE PERTINENT FACTS WERE SET OUT IN THE DECISION OF JUNE 15. YOU STATE IN YOUR LETTER THAT THE ONLY SPECIAL TOOLING INVOLVED WAS THAT LISTED ON PAGES 4 TO 7 OF THE INVITATION AND THAT THEREFORE THE CLAUSE ON PAGE 13 RELATIVE TO SPECIAL TOOLING COULD APPLY ONLY TO THAT LISTED ON PAGES 4 TO 7. YOU DENY THAT YOUR DIRECTOR OF CONTRACTS ADMITTED TO THE CONTRACTING OFFICER THAT THERE WAS OTHER SPECIAL TOOLING THAN THAT LISTED ON PAGES 4 TO 7. THERE IS NOTED. THAT THIS MATTER WAS A SUBJECT OF DISCUSSION AND APPARENT DISAGREEMENT AS TO THE BEST METHOD OF MAKING THE INFORMATION AVAILABLE.
B-145643, OCT. 19, 1961
TO AMERICAN BOSCH ARMA CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1961, WITH ITS ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 15, 1961, WHEREIN IT WAS HELD THAT THERE WAS NO VALID BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE U.S. NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, IN REJECTING YOUR BID AND MAKING AWARD TO GENERAL ELECTRIC COMPANY UNDER INVITATION NO. IFB-128-113-61 ISSUED MARCH 20, 1961, REQUESTING BIDS FOR FURNISHING MOTORS.
MANY OF THE PERTINENT FACTS WERE SET OUT IN THE DECISION OF JUNE 15, 1961, AND NEED NOT BE REPEATED HERE. YOU STATE IN YOUR LETTER THAT THE ONLY SPECIAL TOOLING INVOLVED WAS THAT LISTED ON PAGES 4 TO 7 OF THE INVITATION AND THAT THEREFORE THE CLAUSE ON PAGE 13 RELATIVE TO SPECIAL TOOLING COULD APPLY ONLY TO THAT LISTED ON PAGES 4 TO 7. ALSO, YOU DENY THAT YOUR DIRECTOR OF CONTRACTS ADMITTED TO THE CONTRACTING OFFICER THAT THERE WAS OTHER SPECIAL TOOLING THAN THAT LISTED ON PAGES 4 TO 7.
THERE IS NOTED, ALSO, IN THE ATTACHMENT INCLOSED WITH YOUR LETTER YOUR CONTENTION THAT, CONTRARY TO THE ADMINISTRATIVE REPORT REFERRED TO IN OUR DECISION OF JUNE 15, 1961, YOU DID COOPERATE IN MAKING AVAILABLE TO PROSPECTIVE BIDDERS UNDER THE FIRST INVITATION INFORMATION AS TO THE TOOLING IN YOUR POSSESSION LISTED IN THAT INVITATION. YOU CONCEDE, HOWEVER, THAT THIS MATTER WAS A SUBJECT OF DISCUSSION AND APPARENT DISAGREEMENT AS TO THE BEST METHOD OF MAKING THE INFORMATION AVAILABLE.
IT IS NOT PRIMARILY A FUNCTION OF OUR OFFICE TO RESOLVE DISPUTED QUESTIONS OF FACT. UPON DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AND A CLAIMANT OR OTHER PERSON DEALING WITH THE GOVERNMENT, THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENTS OF FACT FURNISHED BY THE ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 16 COMP. GEN. 325; ID. 410. ALSO, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIAL, EQUIPMENT OR SERVICES. 21 COMP. GEN. 1132, 1136.
IN THE INSTANT MATTER, IT IS ADMINISTRATIVELY REPORTED THAT THE PROCUREMENT INVOLVED SPECIAL TOOLING TO WHICH THE REFERRED-TO CLAUSE ON PAGE 13 OF THE INVITATION MIGHT APPLY, OTHER THAN THE TOOLING LISTED ON PAGES 4 TO 7 OF THE INVITATION. IN THIS CONNECTION, IT IS STATED BY THE ADMINISTRATIVE OFFICE THAT THE MACHINERY LISTED ON PAGES 4 TO 7 OF THE INVITATION WAS PRODUCED BY YOUR CORPORATION FOR THE PRODUCTION OF MOTORS IN ACCORDANCE WITH MILITARY SPECIFICATION NO. M-21602 AND THEREFORE WAS NOT REGARDED AS NECESSARILY SUFFICIENT FOR THE PRODUCTION OF MOTORS TO BE PRODUCED IN ACCORDANCE WITH MILITARY SPECIFICATION NO. M-22661 (WEP) AS REQUIRED BY INVITATION NO. IFB-128 113-61. FURTHERMORE, AS STATED IN OUR DECISION OF JUNE 15, 1961, YOU CONCEDED IN YOUR LETTER OF APRIL 27, 1961, TO OUR OFFICE THAT THE CLAUSE ON PAGE 13 OF THE INVITATION REFERRED TO SPECIAL TOOLING OTHER THAN THAT LISTED ON PAGES 4 TO 7 OF THE INVITATION. AS ALSO SET OUT IN THE DECISION, IT APPEARS THAT THE ULTIMATE AMOUNT OF YOUR BID WAS UNCERTAIN BECAUSE OF THE POSSIBLE ADDITION OF A RENTAL CHARGE.
UPON RECONSIDERATION OF THE MATTER, WE REMAIN OF THE OPINION THAT THERE WAS A SUBSTANTIAL BASIS FOR THE ACTIONS OF THE ADMINISTRATIVE OFFICERS IN REJECTING YOUR BID AND THAT SUCH ACTIONS WERE TAKEN IN GOOD FAITH, AFTER CAREFUL CONSIDERATION, FOR THE PURPOSE OF SERVING THE BEST INTERESTS OF THE GOVERNMENT.
IN YOUR LETTER YOU COMMENTED ON THE FACT THAT THE AWARD WAS MADE TO GENERAL ELECTRIC COMPANY AT THE SAME PRICE AS THAT QUOTED IN YOUR BID, WHICH WAS $32 PER UNIT BELOW THE PRICE ORIGINALLY BID BY GENERAL ELECTRIC COMPANY. IT IS WELL ESTABLISHED, AS A GENERAL RULE, THAT BIDDERS MAY NOT VARY THEIR PROPOSALS AFTER BIDS ARE OPENED, SINCE THIS WOULD NULLIFY THE ENTIRE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. 17 COMP. GEN. 554. THE REASON FOR THE RULE, OF COURSE, IS TO PUT ALL BIDDERS ON AN EQUAL BASIS AND TO PREVENT ANY BIDDER FROM OBTAINING THE ADVANTAGE WHICH IT WOULD HAVE BY BEING PERMITTED TO BID AFTER THE OTHER BIDS WERE KNOWN. IN THE PRESENT CASE, IT WAS DETERMINED BY THE PROCURING OFFICE THAT THE TWO LOW BIDS WERE NOT RESPONSIVE AND THAT THEREFORE GENERAL ELECTRIC COMPANY, AS THIRD LOW BIDDER, WAS ENTITLED TO THE AWARD. CONSEQUENTLY, NO VALID COMPLAINT COULD BE MADE BY OTHER BIDDERS TO A MODIFICATION OF GENERAL ELECTRIC COMPANY'S BID RESULTING IN A DECREASE IN THE CONTRACT PRICE. AS WAS STATED BY THE COURT OF CLAIMS IN THE CASE OF ALECK LEITMAN V. UNITED STATES, 104 CT.CL. 324, 341, "THERE CAN BE NO POSSIBLE REASON WHY A LOW BIDDER CANNOT VOLUNTARILY DECREASE THE AMOUNT OF HIS BID.' SEE 37 COMP. GEN. 251.
FOR THE REASONS ABOVE SET FORTH, OUR DECISION OF JUNE 15, 1961, APPEARS CORRECT AND HEREBY IS ..END :