B-142967, JUL. 18, 1960

B-142967, JUL. 18, 1960

TO MMS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1960, WITH ENCLOSURE, PROTESTING THE REJECTION OF ALL BIDS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ORD-19-058-60-75, AS AMENDED, ISSUED ON MARCH 18, 1960, BY THE SPRINGFIELD ARMORY, DEPARTMENT OF THE ARMY.

THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF 160,012 UNITS OF MAGAZINE ASSEMBLIES FOR THE M14, 7.62 MM CALIBRE, RIFLE. PRIOR TO THE SCHEDULE OPENING OF BIDS FIXED FOR APRIL 18, 1960, A CURRENT PRODUCER OF THE ITEM, THE ROCHESTER MANUFACTURING COMPANY, REQUESTED THAT THE BID OPENING DATE BE EXTENDED TO APRIL 28, 1960, SINCE ADDITIONAL TIME WAS NEEDED TO ESTIMATE ITS BID BECAUSE OF THE FUNCTION FIRING REQUIREMENT OF THE INVITATION SPECIFICATIONS. ALSO, THAT COMPANY REQUESTED PERMISSION TO BID ON THE BASIS OF SPECIFICATION DEVIATIONS GRANTED IN THEIR CURRENT PRODUCTION CONTRACT. BY LETTER DATED APRIL 8, 1960, ROCHESTER ADVISED OF THEIR INABILITY TO BID ON THE MAGAZINE ASSEMBLIES AT THE FUNCTIONAL DIMENSIONS INDICATED ON THE SPECIFICATION DRAWINGS. THE REQUEST FOR EXTENSION OF THE BID OPENING DATE WAS CONSIDERED ACCEPTABLE SINCE IT WOULD PERMIT THE INCORPORATION OF REVISED DRAWINGS IN THE INVITATION. HENCE, AMENDMENT NO. 1 WAS ISSUED ON APRIL 13, 1960, TO EXTEND THE BID OPENING DATE TO APRIL 28, 1960, AND ON APRIL 18, 1960, AMENDMENT NO. 2 WAS ISSUED TO INCORPORATE THE REVISED DRAWINGS IN THE INVITATION. NINE BIDS WERE RECEIVED AND OPENED ON APRIL 28, 1960, AND IT APPEARS FROM THE ABSTRACT OF BIDS THAT YOUR FIRM SUBMITTED THE LOWEST BID OF $0.92 PER UNIT.

IT WAS OBSERVED BY THE CONTRACTING OFFICER THAT BIDDER NO. 3, THE WESTINGHOUSE ELECTRIC CORPORATION, WHICH WAS ANOTHER PRODUCER OF THE INVITATION ITEM, HAD BASED ITS BID ON DEVIATIONS MUTUALLY ACCEPTABLE TO THE GOVERNMENT AND THE BIDDER. IN ADDITION, WESTINGHOUSE INDICATED THAT THE SPECIFICATION REQUIREMENTS OF THE INVITATION WERE NOT COMPATIBLE WITH EFFICIENT HIGH PRODUCTION MANUFACTURING PRACTICES AND TECHNIQUES. SINCE A REASONABLE DOUBT EXISTED AS TO WHETHER THE SPECIFICATIONS SHOULD BE FURTHER REVISED IN VIEW OF THE COMMENTS OF TWO OF THE THREE CURRENT PRODUCERS OF THE ITEM THAT EFFICIENT, ECONOMICAL PRODUCTION REQUIRED CHANGES IN THE SPECIFICATIONS, YOUR FIRM WAS REQUESTED TO EXTEND THE BID ACCEPTANCE PERIOD. YOUR FIRM GRANTED ACCEPTANCE TIME EXTENSIONS TO MAY 18, 1960. ON MAY 17, 1960, THE ENGINEER DIVISION, SPRINGFIELD ARMORY, ADVISED THAT 20 SEPARATE REQUESTS FOR CONTRACT SPECIFICATION DEVIATIONS HAD BEEN PROCESSED EACH CONTAINING NUMEROUS DIMENSIONAL DEVIATIONS; THAT ALL THREE MANUFACTURERS WERE HAVING ESSENTIALLY THE SAME DIFFICULTIES; AND THAT AN ENGINEERING AND DESIGN STUDY EFFORT WAS TO BE INITIATED TO EFFECT ECONOMIES AND THE MEETING OF DELIVERY SCHEDULES IN CURRENT AND FUTURE PROCUREMENTS. IN VIEW OF THE DEMONSTRATED NEED FOR THE REVISION OF THE SPECIFICATIONS, THE CONTRACTING OFFICER DETERMINED ON MAY 17, 1960, TO CANCEL THE INVITATION AND TO REPROCURE THE ITEM AT A LATER DATE WHEN THE POSSIBILITY OF OBTAINING LOW COST QUANTITY PRODUCTION OF ACCEPTABLE MAGAZINE ASSEMBLIES COULD BE INSURED TO A GREATER DEGREE THAN AT THE PRESENT TIME. ALL BIDDERS WERE ACCORDINGLY ADVISED THAT ALL BIDS HAD BEEN REJECTED AND THAT THE REQUIREMENTS WOULD BE REPROCURED UNDER REVISED SPECIFICATIONS AT A LATER DATE.

THE GOVERNMENT, UNDER PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION EXPRESSLY RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS, AND 10 U.S.C. 2305 (C) PROVIDES THAT ALL BIDS MAY BE REJECTED IF THE HEAD OF THE AGENCY DETERMINES SUCH ACTION TO BE IN THE PUBLIC INTEREST. THE AUTHORITY TO MAKE SUCH DETERMINATION IS DELEGABLE TO THE CONTRACTING OFFICER UNDER 10 U.S.C. 2311. WE, NONETHELESS,RECOGNIZE THAT THE REJECTION OF ALL BIDS AFTER BIDS ARE OPENED AND PUBLICLY DISCLOSED IS A SERIOUS MATTER WHICH MAY OPERATE TO THE DETRIMENT OF ALL OR SOME OF THE BIDDERS WHO HAVE HAD THE DETAILS OF THEIR BIDS EXPOSED. HOWEVER, A PUBLIC OFFICER ACTING FOR THE PUBLIC WELFARE IS NOT BOUND TO ACCEPT A BID WHERE HE DETERMINES, ON THE BASIS OF FACTS REASONABLY TENDING TO SUPPORT HIS CONCLUSION, THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND THAT READVERTISEMENT OF THE CONTRACT MIGHT RESULT IN A MORE ADVANTAGEOUS CONTRACT FOR THE GOVERNMENT. 17 COMP. GEN. 554, 36 COMP. GEN. 364. SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED ON THE BASIS OF SUFFICIENT EVIDENCE THAT THE ADVERTISED SPECIFICATIONS REQUIRED REVISION IN ORDER TO SECURE MORE ADVANTAGEOUS COMPETITION--- AND THERE IS NOTHING TO INDICATE THAT SUCH DETERMINATION WAS MADE IN OTHER THAN GOOD FAITH--- WE CAN FIND NO LEGAL JUSTIFICATION FOR DISTURBING THE ACTION TAKEN BY THE PROCUREMENT AGENCY IN THE MATTER.