B-148280, JUN. 1, 1962

B-148280, JUN. 1, 1962

THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

REFERENCE IS MADE TO A LETTER DATED APRIL 20, 1962, FROM YOUR ADMINISTRATIVE ASSISTANT SECRETARY, RELATING TO A PROTEST BY THE WESTERN X -RAY COMPANY, SEATTLE, WASHINGTON, UNDER INVITATION FOR BIDS NO. 1106-1-12 -62, ISSUED BY THE UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL, SEATTLE, WASHINGTON, UNDER DATE OF JANUARY 12, 1962.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO THE WESTERN X-RAY COMPANY. ON THE BASIS OF THE FACTS SET FORTH IN THE LETTER OF APRIL 20, 1962, AND THE ENCLOSURES THERETO, WE BELIEVE THAT THE DEVIATIONS INVOLVED WERE PROPERLY WAIVED AS MINOR IN CHARACTER AND FOR THAT REASON WE DENIED THE COMPANY'S PROTEST. WE WISH, HOWEVER, TO CALL YOUR ATTENTION TO A STATEMENT CONTAINED IN DR. DONALD A. CARLYLE'S LETTER OF FEBRUARY 19, 1962, TO WESTERN X-RAY WHICH APPEARS TO REQUIRE SOME COMMENT BY OUR OFFICE. THE SECOND PARAGRAPH OF THE INDICATED LETTER CONTAINS THE FOLLOWING LANGUAGE:

"YOUR ATTENTION IS FIRST SPECIFICALLY CALLED TO THE INTENT PARAGRAPH ON PAGE 2 WHICH STATES THAT ANY EXCEPTIONS TO THESE SPECIFICATIONS WILL BE STATED AND EXPLAINED IN THE SUBMITTED BIDS AND MAY BE CAUSE FOR REJECTION. THE WORD "MAY" WAS USED BECAUSE IT WAS NOT INTENDED THAT ANY EXCEPTION WOULD NECESSARILY RESULT IN BID REJECTION. IN FACT, IT WAS EXPECTED THAT NO ONE BIDDER WOULD MEET ALL SPECIFICATIONS AND THAT THE SUCCESSFUL BIDDER WOULD, THEREFORE, HAVE EXCEPTIONS WHICH WOULD BE ALLOWED. * * *"

THE QUOTED LANGUAGE SEEMS TO IMPLY A BELIEF ON THE PART OF DR. CARLYLE THAT BY THE USE OF THE WORD "MAY" HE COULD EXERCISE A RATHER WIDE DISCRETION IN DETERMINING WHETHER DEVIATIONS INCLUDED IN BIDS WOULD BE A CAUSE FOR THEIR REJECTION. WE DO NOT INTERPRET THE USE OF THE WORD "MAY" AS CONFERRING UPON THE CONTRACTING OFFICER A WIDE DISCRETION TO WAIVE OR TO REFUSE TO WAIVE AN EXCEPTION TO THE SPECIFICATIONS. OUROFFICE HAS HAD MANY OCCASIONS TO CONSIDER THE QUESTION OF A WAIVER OF DEVIATIONS FROM THE SPECIFICATIONS. FOR EXAMPLE, IN A DECISION DATED MAY 15, 1958, PUBLISHED AT 37 COMP. GEN. 763, WE HELD (PAGE 765) THAT THE AREA OF ADMINISTRATIVE DISCRETION TO WAIVE INVITATION REQUIREMENTS IS RESTRICTED TO THOSE MINOR INFORMALITIES AND DEFECTS OF FORM WHICH DO NOT AFFECT THE QUALITY, QUANTITY, OR PRICES OF THE ARTICLES OFFERED TO THE PREJUDICE OF OTHER BIDDERS, CITING 30 COMP. GEN. 179; 17 ID. 554.

WE FEEL JUSTIFIED IN BRINGING THE FOREGOING MATTERS TO YOUR ATTENTION IN VIEW OF THE QUOTED STATEMENTS FROM DR. CARLYLE'S LETTER OF FEBRUARY 19, 1962, AND IN ORDER TO MAKE CLEAR OUR VIEWS CONCERNING THE AUTHORITY OF THE CONTRACTING OFFICER TO WAIVE DEVIATIONS.