B-146233, SEP. 19, 1961

B-146233, SEP. 19, 1961

TO THE PERFECTION ELECTRONIC PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1961, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 22, 1961, DENYING YOUR PROTEST CONCERNING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-11-184-61-AF-479-JD, ISSUED BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS.

THE BID OF PERFECTION ELECTRONIC PRODUCTS COMPANY WAS REJECTED AS NOT BEING RESPONSIVE TO THE SPECIFIC PROVISIONS OF THE INVITATION IN THAT THE BID DID NOT QUOTE A PRICE FOR THE OPTION QUANTITY. IN ADDITION TO THE FACT THAT THE OPTION GAVE THE GOVERNMENT A SUBSTANTIVE AND VALUABLE RIGHT TO BE EXERCISED AT ANY TIME WITHIN APPROXIMATELY 210 DAYS AFTER AWARD, THE INVITATION SPECIFICALLY PROVIDED THAT A BIDDER "MUST ALSO SUBMIT A BID COVERING THE OPTION QUANTITY AS CALLED FOR UNDER ITEM 1.1A, OTHERWISE HIS BID WILL BE CONSIDERED NON RESPONSIVE.' IT HAS BEEN OUR CONSISTENT POSITION THAT SUCH MANDATORY PROVISIONS SHOULD BE APPLIED IN ACCORDANCE WITH THEIR CLEAR MEANING. THE STATUTORY AUTHORITY FOR THE DEFENSE DEPARTMENTS TO ENTER INTO CONTRACTS, 10 U.S.C. 2305 (C), PROVIDES:

"BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. HOWEVER, ALL BIDS MAY BE REJECTED IF THE HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC INTEREST.'

ALTHOUGH THE FAILURE TO QUOTE ON THE OPTION QUANTITY MAY HAVE BEEN DUE TO AN OVERSIGHT, AS ALLEGED, THE REASONS FOR THE FAILURE OF THE BID TO CONFORM TO THE REQUIREMENTS OF THE INVITATION ARE IMMATERIAL SINCE A NON- RESPONSIVE BID MAY NOT BE CHANGED OR MODIFIED AFTER THE OPENING OF THE BIDS TO MAKE IT RESPONSIVE. THEREFORE THERE IS NO BASIS UPON WHICH YOUR BID COULD HAVE BEEN CONSIDERED FOR AWARD UNDER THE INVITATION FOR BIDS INVOLVED.

AS STATED IN OUR DECISION OF AUGUST 22, 1961, THE CONTRACTING OFFICER CONSIDERED THE ADVISABILITY OF CANCELLING THE INVITATION, REJECTING ALL BIDS AND READVERTISING, BUT HE DETERMINED THAT THE PRICE QUOTED BY THE LOWEST RESPONSIBLE BIDDER WAS REASONABLE IN COMPARISON WITH THE PRICES PREVIOUSLY PAID FOR THE ITEM AND WAS THE LOWEST OF 11 OTHER BIDS RECEIVED UNDER THE INSTANT INVITATION. UNDER THE CIRCUMSTANCES, AND APPARENTLY HAVING DOUBT AS TO THE EXTENT THAT THE MATERIALS ON HAND WITH THE GENERAL EQUIPMENT COMPANY AFTER DEFAULT PROCEEDINGS UNDER A CONTRACT FOR A SIMILAR ITEM COULD BE UTILIZED IN THE MANUFACTURE OF THE ITEM PRESENTLY INVOLVED, THE CONTRACTING OFFICER DETERMINED THAT SUCH ACTION WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. WE HAVE CONSISTENTLY HELD THAT THE QUESTION AS TO WHETHER ALL BIDS SHOULD BE REJECTED AND A PROCUREMENT READVERTISED IN THE HOPE OF OBTAINING A LOWER PRICE IS ONE PRIMARILY FOR CONSIDERATION OF THE CONTRACTING AGENCY AND NOT THE GENERAL ACCOUNTING OFFICE. THERE IS, THEREFORE, NO LEGAL BASIS UPON WHICH WE COULD QUESTION THE AWARD MADE UNDER THE INVITATION INVOLVED. ACCORDINGLY, THE CONCLUSION REACHED IN THE DECISION OF AUGUST 22, 1961, MUST BE SUSTAINED.