B-144757, MAY 1, 1961

B-144757: May 1, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 6. WHICH WAS ISSUED BY THE PROCUREMENT OFFICE OF THE AIR FORCE BASE ON OCTOBER 14. AFTER EVALUATION OF THE THREE BIDS THAT WERE RECEIVED. WHICH WERE IN THE AMOUNTS OF $74. WHILE YOUR PROTEST IS SET FORTH IN CONSIDERABLE DETAIL IN YOUR LETTER OF MARCH 1. IT APPEARS THAT YOU QUESTION PRIMARILY WHETHER THE CANCELLATION WAS. YOU CONTEND THAT IT WAS NOT UNTIL THE LATTER PART OF DECEMBER 1960 THAT THE CANCELLATION WAS EFFECTED AND YOU POINT OUT THAT THIS WAS AFTER RECEIPT. OF AN ALLEGED PROTEST FROM THE RADIO CORPORATION OF AMERICA TO THE EFFECT THAT ITS BID WAS THE ONLY RESPONSIVE BID RECEIVED. THE CONTRACTING OFFICER DECIDED TO CANCEL THE INVITATION AND HAVE THE SPECIFICATIONS REWRITTEN TO MORE ADEQUATELY REFLECT THE MINIMUM NEEDS OF THE AIR FORCE AND PERMIT BROADER COMPETITION.

B-144757, MAY 1, 1961

TO SARKES TARZIAN, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 6, 1961, AND YOUR LETTER DATED MARCH 1, 1961, PROTESTING THE ACTION TAKEN BY THE SHEPPARD AIR FORCE BASE UNDER INVITATION NO. 41-612-61-23.

THE INVITATION, WHICH WAS ISSUED BY THE PROCUREMENT OFFICE OF THE AIR FORCE BASE ON OCTOBER 14, 1960, COVERED THE FURNISHING AND INSTALLATION OF A COMPLETE WORKING SYSTEM OF CLOSED CIRCUIT TELEVISION-- FIELD TYPE EQUIPMENT--- IN ACCORDANCE WITH THE APPLICABLE DETAILED REQUIREMENTS OF THE GENERAL CONDITIONS, SPECIFICATIONS, ETC. AFTER EVALUATION OF THE THREE BIDS THAT WERE RECEIVED, WHICH WERE IN THE AMOUNTS OF $74,500, $79,932 AND $87,900, THE AIR FORCE BASE PROCUREMENT PERSONNEL DETERMINED IT WOULD BE ADVISABLE TO CANCEL INVITATION NO. 41-612-61-23 AND READVERTISE. YOU PROTEST THE CANCELLATION OF THE INVITATION AND THE ALLEGED NONRESPONSIVENESS OF YOUR BID.

WHILE YOUR PROTEST IS SET FORTH IN CONSIDERABLE DETAIL IN YOUR LETTER OF MARCH 1, 1961, AS TO THE VARIOUS ASPECTS OF THE CANCELLATION, IT APPEARS THAT YOU QUESTION PRIMARILY WHETHER THE CANCELLATION WAS, IN FACT, BASED UPON A TRUE EVALUATION OF THE BIDS RECEIVED AND THE OVER-ALL GOVERNMENT REQUIREMENTS. YOU CONTEND THAT IT WAS NOT UNTIL THE LATTER PART OF DECEMBER 1960 THAT THE CANCELLATION WAS EFFECTED AND YOU POINT OUT THAT THIS WAS AFTER RECEIPT, BY THE SHEPPARD AIR FORCE BASE, OF AN ALLEGED PROTEST FROM THE RADIO CORPORATION OF AMERICA TO THE EFFECT THAT ITS BID WAS THE ONLY RESPONSIVE BID RECEIVED. IN ADDITION, YOU SET FORTH AT LENGTH THE REASONS IN SUPPORT OF YOUR CONTENTION THAT THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH WOULD MEET THE SAME STANDARDS OF PERFORMANCE AS ANY OTHER EQUIPMENT OFFERED UNDER THE INVITATION.

IN THE PROCESS OF THE BID EVALUATION, THE SHEPPARD AIR FORCE BASE PROCUREMENT PERSONNEL FELT THAT THE SPECIFICATIONS COVERING THE PROCUREMENT DID NOT PROPERLY REFLECT THE MINIMUM NEEDS OF THE AIR FORCE AND THAT A MUCH LESS COSTLY SYSTEM WOULD BE SUITABLE. AS A CONSEQUENCE, THE CONTRACTING OFFICER DECIDED TO CANCEL THE INVITATION AND HAVE THE SPECIFICATIONS REWRITTEN TO MORE ADEQUATELY REFLECT THE MINIMUM NEEDS OF THE AIR FORCE AND PERMIT BROADER COMPETITION. WHETHER THE DECISION OF THE AIR FORCE BASE TO HAVE THE PROCUREMENT READVERTISED ON A BASIS THAT WOULD BETTER REFLECT ITS MINIMUM NEEDS WAS MADE "IN THE COURSE OF EVALUATION" AS THAT PERIOD, MAY BE INTERPRETED BY YOU OR BY THE AIR FORCE BASE, WOULD APPEAR TO BE RELATIVELY IMMATERIAL. THE IMPORTANT FACT IS THAT THE AIR FORCE BASE HAD THE RIGHT TO, AND DID, MAKE SUCH A DETERMINATION. IN THIS REGARD, THERE IS NOTHING IN THE RECORD BEFORE US TO SHOW THAT THE CANCELLATION WAS INFLUENCED BY THE ALLEGED EARLIER PROTEST OF THE RADIO CORPORATION OF AMERICA. HOWEVER, IT MIGHT BE ADDED THAT THERE WOULD APPEAR TO BE NOTHING OBJECTIONABLE IN GOVERNMENT PROCUREMENT OFFICIALS CONSIDERING, IN THE OVER-ALL BID EVALUATIONS, SUCH SUGGESTIONS OR ADVISORY INFORMATION THAT MIGHT BE FURNISHED ON A GIVEN PROCUREMENT BY INTERESTED OR COMPETITIVE BIDDERS, EITHER BEFORE OR AFTER BID OPENINGS, THAT WOULD PROVE BENEFICIAL TO THE GOVERNMENT INSOFAR AS MINIMUM NEEDS, COSTS, TC., ARE CONCERNED PROVIDED, OF COURSE, THAT THE GOVERNMENT'S USE OF THE SUGGESTIONS OR INFORMATION IN ANY INVITATION WOULD IN NO WAY RESULT IN AN UNFAIR BIDDING ADVANTAGE TO THE COMPANY FURNISHING SUCH INFORMATION. WHILE WE FULLY RECOGNIZE THAT THE CANCELLATION OF INVITATIONS AFTER BID OPENINGS CAUSES VARIOUS FORMS OF HARDSHIPS TO BIDDERS AND DELAYS GOVERNMENT PROCUREMENTS AS WELL, SUCH ACTION MUST BE CONDONED WHEN, ALL FACTORS CONSIDERED, THE GOVERNMENT'S INTEREST REQUIRES IT. IN VIEW OF THIS, AND SINCE THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS UNDER PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AND 10 U.S.C. 2305 (C), ALSO, SINCE THE RECORD BEFORE US FAILS TO SHOW ANY BAD FAITH ON THE PART OF THE SHEPPARD AIR FORCE BASE PROCUREMENT PERSONNEL IN THE MATTER, CANCELLATION OF THE INVITATION MAY NOT BE HELD TO HAVE BEEN LEGALLY OBJECTIONABLE.

SINCE CANCELLATION OF INVITATION NO. 41-612-61-23 WAS MADE FOR THE REASONS STATED, AND UNDER THE AUTHORITIES CITED, THE QUESTION AS TO THE ALLEGED NONRESPONSIVENESS OF YOUR BID BECOMES COMPLETELY ACADEMIC. THIS REGARD, HOWEVER, IT MIGHT BE STATED THAT THE DEPARTMENT OF THE AIR FORCE REPORTS THERE WAS A SERIOUS QUESTION RAISED AS TO WHETHER ANY OF THE THREE BIDS RECEIVED UNDER THE INVITATION WERE FULLY RESPONSIVE TO THE CONTRACT SPECIFICATION REQUIREMENTS.

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