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B-143073, JUL. 20, 1960

B-143073 Jul 20, 1960
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ESQUIRE: WE HAVE YOUR LETTER OF JUNE 29. WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE OF THE BIDDER'S FAILURE TO FURNISH THE AFFIDAVIT OF BUSINESS AFFILIATES AS REQUIRED BY BID INVITATION PROVISION 22 AND. WAS AWARDED CONTRACT NO. YOU REQUEST THAT WE CONFIRM THE UNDERSTANDING OF YOUR CLIENT THAT A PROTEST FILED BY QUILLER HAS BEEN ALLOWED AND THAT THE CONTRACTING OFFICER IS PROCEEDING TO AWARD A CONTRACT TO QUILLER WITHOUT REGARD TO BID INVITATION PROVISION 22. IN THE EVENT THE AWARD IS MADE TO A BIDDER OTHER THAN YOUR CLIENT. YOU ADVISE THAT COMPENSATION FOR DAMAGES SUSTAINED BY YOUR CLIENT AS A RESULT THEREOF WILL BE EXPECTED. THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT TO QUILLER UNDER THE SUBJECT INVITATION WAS CONSIDERED BY OUR OFFICE IN DECISION B-143073 DATED JUNE 24.

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B-143073, JUL. 20, 1960

TO KENNETH E. LEWIS, ESQUIRE:

WE HAVE YOUR LETTER OF JUNE 29, 1960, RESPECTING THE PROTEST OF THE P. J. WALKER COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN ITSELF UNDER INVITATION FOR BIDS NO. 04-611-60-199, COVERING THE REHABILITATION OF WHERRY HOUSING UNITS AT EDWARDS AIR FORCE BASE, CALIFORNIA.

YOU ADVISE THAT THE LOW BID OF THE QUILLER CONSTRUCTION COMPANY, INC., WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE OF THE BIDDER'S FAILURE TO FURNISH THE AFFIDAVIT OF BUSINESS AFFILIATES AS REQUIRED BY BID INVITATION PROVISION 22 AND, THEREFORE, YOUR CLIENT, AS THE NEXT LOWEST BIDDER, WAS AWARDED CONTRACT NO. AF 04 (611/-6064 DATED JUNE 8, 1960, WHICH IT SIGNED AND RETURNED TO THE CONTRACTING OFFICER TOGETHER WITH THE REQUISITE PERFORMANCE AND PAYMENT BONDS. ALSO, YOU REQUEST THAT WE CONFIRM THE UNDERSTANDING OF YOUR CLIENT THAT A PROTEST FILED BY QUILLER HAS BEEN ALLOWED AND THAT THE CONTRACTING OFFICER IS PROCEEDING TO AWARD A CONTRACT TO QUILLER WITHOUT REGARD TO BID INVITATION PROVISION 22. IN VIEW THEREOF, YOU REQUEST THAT WE REVIEW THIS MATTER AND APPROVE THE AWARD MADE TO YOUR CLIENT. IN THE EVENT THE AWARD IS MADE TO A BIDDER OTHER THAN YOUR CLIENT, YOU ADVISE THAT COMPENSATION FOR DAMAGES SUSTAINED BY YOUR CLIENT AS A RESULT THEREOF WILL BE EXPECTED.

THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT TO QUILLER UNDER THE SUBJECT INVITATION WAS CONSIDERED BY OUR OFFICE IN DECISION B-143073 DATED JUNE 24, 1960, TO THE SECRETARY OF THE AIR FORCE, COPY HEREWITH. AS WILL BE NOTED, WE CONCLUDED IN THAT DECISION THAT THE FAILURE TO SUBMIT THE AFFIDAVIT IN QUESTION MAY BE WAIVED ADMINISTRATIVELY AND THE CONTRACT AWARDED TO QUILLER, IF OTHERWISE PROPER.

CONCERNING THE "AWARD" OF A CONTRACT TO YOUR CLIENT UNDER THE INVITATION, WE ARE ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE "AWARD" MADE TO YOUR CLIENT WAS SUBJECT TO APPROVAL BY HIGHER AUTHORITY AND THAT SUCH APPROVAL IS REQUIRED UNDER DEPARTMENTAL PROCEDURES RESPECTING THE AWARD OF CONSTRUCTION CONTRACTS. WE HAVE HELD THAT AN UNAPPROVED CONTRACT IS UNENFORCEABLE AGAINST THE GOVERNMENT SINCE NO VALID CONTRACT RIGHTS ACCRUE TO A SUCCESSFUL BIDDER UNTIL SUCH APPROVAL IS EFFECTED. SEE 33 COMP. GEN. 180.

WITH RESPECT TO THE MATTER OF COMPENSATING YOUR CLIENT FOR DAMAGES ARISING OUT OF THE AWARD OF A CONTRACT TO QUILLER, YOU ARE ADVISED THAT THE COURTS AS WELL AS OUR OFFICE HAVE CONSISTENTLY HELD THAT, THE COMPETITIVE BIDDING STATUTES HAVING BEEN ENACTED SOLELY FOR THE BENEFIT OF THE GOVERNMENT AND NOT FOR BIDDERS, A BIDDER CANNOT MAINTAIN AN ACTION FOR DAMAGES FOR THE GOVERNMENT'S FAILURE TO AWARD A CONTRACT. PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, 126; O-BRIEN V. CARNEY, ET AL., 6 F.SUPP. 761; 17 COMP. GEN. 554; COLORADO PAVING COMPANY V. MURPHY, 78 F. 28.

SINCE QUILLER SUBMITTED THE LOWEST, RESPONSIVE BID UNDER THE INVITATION NOTWITHSTANDING ITS FAILURE TO COMPLY WITH PROVISION 22, AWARD TO THAT BIDDER NOT ONLY IS PROPER BUT IS REQUIRED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2305 (C) RESPECTING THE MAKING OF AWARDS UNDER COMPETITIVE BIDDING PROCEDURES.

ACCORDINGLY, THE PROTEST OF YOUR CLIENT AGAINST THE AWARD AS MADE UNDER THE INVITATION MUST BE DENIED.

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