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B-141089, NOV. 19, 1959

B-141089 Nov 19, 1959
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IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY THE VINNELL CORPORATION OF CALIFORNIA. HAS ALLEGED THAT THE LOW BID IS NOT RESPONSIVE. OUR VIEWS ARE REQUESTED AS TO WHETHER THE FIRST. OR THIRD LOW BIDDER IS ELIGIBLE FOR AWARD. AUTHORIZE THE AWARD OF CONTRACTS OF THIS TYPE PURSUANT TO NEGOTIATION RATHER THAN FORMAL ADVERTISING AND APPARENTLY THE INVITATION HERE IN QUESTION WAS ISSUED UNDER THIS AUTHORITY. 34 COMP. IT IS OUR VIEW THAT THE NEGOTIATION PROCESS. ORIGINAL SPECIFICATIONS AND OTHER REQUIREMENTS OF THE SOLICITATIONS ARE SUBJECT TO CHANGE AT ANY TIME PRIOR TO AWARD. THERE IS PERCEIVED NO LEGAL BASIS FOR OBJECTION TO PERMITTING CLARIFICATION OR EVEN CHANGES IN THE PROPOSALS AT ANY TIME PRIOR TO AWARD.

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B-141089, NOV. 19, 1959

TO MR. JAMES W. RIDDLEBERGER, DIRECTOR, INTERNATIONAL CORPORATION ADMINISTRATION:

WE REFER TO A LETTER OF OCTOBER 26, 1959, SIGNED BY THE ASSISTANT DIRECTOR, OFFICE OF CONTRACT RELATIONS, REQUESTING OUR VIEWS WITH RESPECT TO THE PROPER DISPOSITION OF BIDS RECEIVED PURSUANT TO AN INVITATION FOR THE CONSTRUCTION OF AN OFFICE BUILDING IN KOREA ISSUED ON JULY 16, 1959, BY THE COMBINED ECONOMIC BOARD, UNITED STATES' REPUBLIC OF KOREA.

UPON OPENING ON SEPTEMBER 7, 1959, IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY THE VINNELL CORPORATION OF CALIFORNIA. THE SECOND LOW BIDDER, F. H. MCGRAW AND COMPANY, BY LETTER OF OCTOBER 9, 1959, HAS ALLEGED THAT THE LOW BID IS NOT RESPONSIVE. OUR VIEWS ARE REQUESTED AS TO WHETHER THE FIRST, SECOND, OR THIRD LOW BIDDER IS ELIGIBLE FOR AWARD.

SECTION 533 OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED,22 U.S.C. 1793, AND EXECUTIVE ORDER NO. 10784, OF OCTOBER 1, 1958, PROMULGATED THEREUNDER, AUTHORIZE THE AWARD OF CONTRACTS OF THIS TYPE PURSUANT TO NEGOTIATION RATHER THAN FORMAL ADVERTISING AND APPARENTLY THE INVITATION HERE IN QUESTION WAS ISSUED UNDER THIS AUTHORITY. 34 COMP. GEN. 343, AND B-137093, MAY 8, 1959. IT IS OUR VIEW THAT THE NEGOTIATION PROCESS, UNLIKE FORMAL ADVERTISING, CONTEMPLATES THE POSSIBILITY OF A SERIES OF OFFERS AND COUNTER-OFFERS LEADING TO A DEFINITIVE CONTRACT WITH ALL INTERESTED RESPONSIBLE PARTIES HAVING BEEN GIVEN A FAIR AND EQUAL OPPORTUNITY TO COMPETE FOR THE CONTRACT. ORIGINAL SPECIFICATIONS AND OTHER REQUIREMENTS OF THE SOLICITATIONS ARE SUBJECT TO CHANGE AT ANY TIME PRIOR TO AWARD. SIMILARLY, MATERIAL ASPECTS OF THE PROPOSAL MAY BE CHANGED AFTER THE TIME SET FOR OPENING. ACCORDINGLY, THERE IS PERCEIVED NO LEGAL BASIS FOR OBJECTION TO PERMITTING CLARIFICATION OR EVEN CHANGES IN THE PROPOSALS AT ANY TIME PRIOR TO AWARD. IN THIS RESPECT, HOWEVER, IT IS OUR VIEW THAT THE CONTRACTING OFFICER SHOULD CONDUCT NEGOTIATIONS SO AS TO OBTAIN THE BEST POSSIBLE CONTRACT FOR THE GOVERNMENT, WITH DUE CONSIDERATION FOR EQUALITY OF TREATMENT OF ALL BIDDERS. 38 COMP. GEN. 861; 37 COMP. GEN. 855.

IN VIEW OF THE CONCLUSION STATED ABOVE, IT IS UNNECESSARY TO CONSIDER THE SPECIFIC QUESTIONS RAISED IN THE SUBMISSION. THE BIDS ENCLOSED WITH THE LETTER OF OCTOBER 26, 1959, ARE RETURNED.

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