B-140052, OCT. 9, 1959

B-140052, OCT. 9, 1959

TO WIDELL ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1959, FURTHER CONCERNING THE REJECTION OF YOUR LOW BID SUBMITTED PURSUANT TO INVITATION NO. ENG-08- 123-59-68, ISSUED JUNE 2, 1959, BY THE ARMY ENGINEER DISTRICT AT JACKSONVILLE, FLORIDA, FOR A WATER SUPPLY TREATMENT SYSTEM AT HOMESTEAD AIR FORCE BASE, HOMESTEAD, FLORIDA. YOU STATE THAT OUR DECISION DATED AUGUST 7, 1959, FAILED TO ANSWER SEVERAL POINTS IN YOUR LETTER OF JULY 1, 1959, WHICH ARE LISTED AS FOLLOWS:

1. "AT THE BID OPENING 18 JUNE 1959, OUR BID WAS NOT REJECTED AS BEING NONRESPONSIVE TO THE INVITATION AND THE LETTER OF REJECTION, WHICH WAS DATED 23 JUNE 1959, WAS NOT RECEIVED UNTIL 26 JUNE 1959 AND DURING THESE EIGHT DAYS, WE WERE ACTUALLY BOUND TO THE U.S. GOVERNMENT BY OUR BID BOND WHICH WE SUPPLIED IN THE AMOUNT OF $14,120.00.

2. "THE CORPS OF ENGINEERS DID NOT AFFORD US THE OPPORTUNITY TO FURNISH THE APPROPRIATE FORMS AS OUR BONDING COMPANY WAS WILLING TO DO IN THEIR TELEGRAM TO THE DISTRICT ENGINEER DATED 29 JUNE 1959.

3. "WE FEEL THAT THIS ACTION IS A WASTE TO THE U.S. GOVERNMENT IN THE AMOUNT OF $2,223.00 AND IS DEFINITELY NOT TO THE BEST INTEREST OF THE U.S. GOVERNMENT.'

YOU REQUEST OUR REASONS FOR THE REJECTION OF YOUR BID WITH THE ABOVE PARAGRAPHS OF YOUR LETTER IN MIND.

WITH RESPECT TO PARAGRAPH NUMBERED ONE ABOVE, YOUR ATTENTION IS INVITED TO PAGE 2 OF OUR DECISION, WHEREIN WE CLEARLY POINTED OUT THAT THE DIFFERENCE BETWEEN THE GOVERNMENT'S STANDARD FORM 24 AND THE ONE FURNISHED BY YOU WENT BEYOND THE QUESTION OF FORM AND ACTUALLY REPRESENTED A DIFFERENCE IN THE RIGHTS AND OBLIGATIONS OF THE PARTIES. WE THEN PROCEEDED TO EXPLAIN IN THE LAST PARAGRAPH OF THAT PAGE THAT THE STANDARD GOVERNMENT BID BOND FORM PRESCRIBES NO SUCH LIMITATION ON THE TIME AS THAT PRESCRIBED IN YOUR FORM WITHIN WHICH AN ACTION MUST BE BROUGHT AGAINST THE SURETY BY THE OBLIGEE AND, THEREFORE, THE GOVERNMENT COULD BRING SUIT AGAINST THE SURETY AT ANY TIME WITHIN A MUCH LONGER PERIOD THAN WOULD BE PERMISSIBLE UNDER THE BID BOND SUBMITTED BY YOU. HENCE, WE CONCLUDED THAT THE BOND FURNISHED BY YOU FAILED TO MEET A MATERIAL REQUIREMENT OF THE INVITATION AND COULD NOT BE REGARDED AS RESPONSIVE.

BY YOUR SECOND POINT, YOU COMPLAIN THAT THE CORPS OF ENGINEERS DID NOT AFFORD YOU THE OPPORTUNITY TO FURNISH THE APPROPRIATE FORMS, AS YOUR BONDING COMPANY WAS WILLING TO DO IN ITS TELEGRAM DATED JUNE 29, 1959. IS OBSERVED THAT THE TELEGRAM IN QUESTION WAS DATED ELEVEN DAYS AFTER THE FORMAL BID OPENING; AND WE HAVE REPEATEDLY HELD THAT TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. CONCERNING YOUR STATEMENT, NUMBERED 3 ABOVE, THAT THE ACTION TAKEN BY THE CONTRACTING OFFICE WAS A WASTE TO THE GOVERNMENT, WE LIKEWISE HAVE HELD THAT THE STRICT OBSERVANCE OF THE COMPETITIVE BIDDING PROCEDURE IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES.

ACCORDINGLY, WE MUST AFFIRM OUR DECISION OF AUGUST 7, 1959, WHEREIN WE CONCLUDED, FOR THE REASONS STATED THEREIN, THAT WE PERCEIVED NO BASIS FOR DISTURBING THE AWARD MADE TO THE SECOND LOW ..END :