B-160790, AUG. 10, 1967

B-160790, AUG. 10, 1967

BIDS - REJECTION AND READVERTISEMENT - SPECIFICATION REVISION DECISION TO WEXLER PAPER PRODUCTS CO., PROTESTING AGAINST CANCELLATION OF INVITATION FOR FURNISHING DEFENSE SUPPLY AGENCY TOILET TISSUE PACKETS AND READVERTISEMENT OF PROCUREMENT. WHERE AFTER OPENING OF BIDS FOR FURNISHING TOILET TISSUE PACKETS FOR COMBAT MEAL KITS, IT WAS DISCOVERED THAT IT WOULD BE POSSIBLE FOR SUCCESSFUL BIDDER TO SUPPLY PACKETS WHICH COMPLIED WITH SPECIFICATION, BUT WHICH WOULD NOT BE SUITABLE FOR INTENDED USE, THE NEED FOR CANCELLATION OF INVITATION IS PROPER UNDER ASPR 2-404.1/B) (I) AND (II) ON BASIS OF SPECIFICATIONS BEING INADEQUATE AND REQUIRING REVISION. FACT THAT PROTESTANT WAS NOT NOTIFIED OF REASON FOR CANCELLATION IS NOT VALID OBJECTION SINCE THIS WAS CANCELLATION OF INVITATION RATHER THAN REJECTION OF ALL BIDS. DECISION OF APRIL 21, SUSTAINED.

TO MR. JOE WEXLER:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12, 1967, REQUESTING RECONSIDERATION OF OUR DECISION DATED APRIL 21, 1967, B-160790, DENYING YOUR PROTEST AGAINST AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. DSA- 130-7-B-01550 ISSUED BY THE DEFENSE SUPPLY AGENCY, AND SUBSEQUENTLY READVERTISED UNDER INVITATION FOR BIDS NO. DSA-130-7-B 01566.

IN OUR DECISION OF APRIL 21, 1967, WE STATED THAT IN OUR OPINION THE PROCEDURES PRESCRIBED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1/A) AND (B) WERE FOLLOWED AND THAT THE CONTRACTING OFFICER HAD NO CHOICE BUT TO READVERTISE UNDER MORE STRINGENT SPECIFICATIONS. THE FACTS AND CIRCUMSTANCES ARE SET FORTH IN DETAIL IN OUR EARLIER DECISION AND WILL NOT BE RESTATED HERE, EXCEPT AS NECESSARY IN THE CONSIDERATION OF YOUR PRESENT CONTENTIONS.

YOUR PRESENT CONTENTIONS ARE AS FOLLOWS:

1. ASPR 2-404.1 DOES NOT ALLOW FOR READVERTISEMENT UNDER THE FACTS OF THIS CASE.

2. ASPR 2-404.1 REQUIRES THE CONTRACTING OFFICER TO DETERMINE IN WRITING THE REASONS FOR WHICH AN INVITATION FOR BIDS IS CANCELLED.

3. YOU RECEIVED NO FORMAL NOTICE (ASPR 2-404.3) OF THE REASONS FOR CANCELLING INVITATION FOR BIDS NO. DSA 130-7-B-01550.

4. YOU STATE THAT YOU WERE LED TO BELIEVE THAT THE CANCELLATION WAS ON THE BASIS THAT THE SPECIFICATIONS WERE AMBIGUOUS AND INADEQUATE, WHEREAS OUR DECISION INDICATED THAT THE CANCELLATION WAS MADE ON THE BASIS THAT THE SPECIFICATIONS HAD TO BE REVISED. YOU CONTEND THAT EITHER BASIS (ASPR 2-404.1/B) (I) OR (II) ( IS ERRONEOUS. YOU CONTEND THE ORIGINAL SPECIFICATIONS WERE UNAMBIGUOUS AND THAT THE CHANGED SPECIFICATIONS WERE ONLY A CLARIFICATION RATHER THAN A SIGNIFICANT READJUSTMENT.

5. THE LOW BIDDER ON THE INITIAL INVITATION FOR BIDS SUBMITTED A NONRESPONSIVE BID WHICH SHOULD HAVE BEEN REJECTED RENDERING THE SECOND BID UNNECESSARY; AND THAT YOU WOULD HAVE BEEN THE SUCCESSFUL BIDDER (ON THE INITIAL INVITATION) AT A HIGHER BID PRICE THAN THE PRICE AT WHICH YOU WERE SUCCESSFUL ON THE READVERTISED INVITATION.

ASPR 2-404, REJECTION OF BIDS PROVIDES, INSOFAR AS PERTINENT HERE, AS FOLLOWS:

"2-404.1 CANCELLATION OF INVITATION AFTER OPENING

"/A) THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. EVERY EFFORT SHALL BE MADE TO ANTICIPATE CHANGES IN A REQUIREMENT PRIOR TO THE DATE OF OPENING AND TO NOTIFY ALL PROSPECTIVE BIDDERS OF ANY RESULTING MODIFICATION OR CANCELLATION, THEREBY PERMITTING BIDDERS TO CHANGE THEIR BIDS AND PREVENTING THE UNNECESSARY EXPOSURE OF BID PRICES. AS A GENERAL RULE, AFTER OPENING, AN INVITATION FOR BIDS SHOULD NOT BE CANCELED AND READVERTISED DUE SOLELY TO INCREASED REQUIREMENTS FOR THE ITEMS BEING PROCURED; AWARD SHOULD BE MADE ON THE INITIAL INVITATION FOR BIDS AND THE ADDITIONAL QUANTITY REQUIRED SHOULD BE TREATED AS A NEW PROCUREMENT.

"/B) WHERE IT IS DETERMINED PRIOR TO AWARD BUT AFTER OPENING THAT THE REQUIREMENTS OF 1-1203 (RELATING TO THE AVAILABILITY AND IDENTIFICATION OF SPECIFICATIONS) HAVE NOT BEEN MET, THE INVITATION FOR BIDS SHALL BE CANCELED. INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT -

(I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION;

(II) SPECIFICATIONS HAVE BEEN REVISED;

DETERMINATIONS TO CANCEL INVITATIONS FOR BIDS SHALL STATE THE REASONS THEREFOR.

"2-404.3 NOTICES TO BIDDERS OF REJECTION OF ALL BIDS.

WHEN HE DETERMINES TO REJECT ALL BIDS, THE CONTRACTING OFFICER SHALL NOTIFY EACH BIDDER THAT ALL BIDS HAVE BEEN REJECTED, STATING THE REASON FOR SUCH ACTION.'

THE RECORD SHOWS THAT ON FEBRUARY 23, 1967, THE CONTRACTING OFFICER MADE THE FOLLOWING DETERMINATIONS WHICH CONSTITUTED THE BASIS FOR CANCELLING THE ORIGINAL INVITATION UNDER AUTHORITY OF ASPR 2-404.1:

"1. THE IFB CONTAINS A SPECIFICATION WHICH WAS INTENDED TO INCLUDE A DOUBLE OR SINGLE PLY, INTERLOCKED OR NON-INTERLOCKED SHEET OF PAPER FOLDED IN SUCH A MANNER AS TO PRODUCE A PACKET WHICH, WHEN WRAPPED, WOULD NOT EXCEED SPECIFIED MEASUREMENTS.

"2. THE TYPE OF FOLD WAS WHOLLY IMMATERIAL AND, IT IS BELIEVED, THIS INTENT IS CLEARLY MANIFESTED IN THE IFB.

"3. IT HAS SINCE BEEN DETERMINED THAT AN END ITEM FOLDED IN A MANNER PERMITTED BY THE IFB IS NOT SUITABLE FOR USE WITH SEMI OR WHOLLY AUTOMATIC FILLING EQUIPMENT BECAUSE OF A LACK OF UNIFORMITY AND A LACK OF STRENGTH IN THE COMPLETED PACKAGE DUE TO THE MANNER OF FOLDING.

"4. IT IS NECESSARY TO REVISE THE SPECIFICATION TO OBTAIN A PRODUCT SUITABLE FOR THIS INTENDED CASE.

"5. BECAUSE THE BIDS HAVE BEEN OPENED, THERE IS NO FURTHER CHOICE THAN TO REJECT ALL BIDS AND PROCURE UNDER A NEW SPECIFICATION.

"6. TO PROCEED UNDER THE IFB AS IT STANDS WOULD PERMIT THOSE WHO WOULD BE SUCCESSFUL TO DELIVER AN ITEM NOT DESIRED; TO ELIMINATE THOSE WHO KNOWINGLY WOULD DELIVER SUCH AN ITEM, WOULD PRECLUDE THEM UNFAIRLY FROM BIDDING ON NEW REQUIREMENTS.'

THE RECORD SHOWS THAT THE ITEM SOUGHT BY THE PROCUREMENT, TOILET TISSUE PACKETS, HAD TO BE OF A LIMITED SIZE, SHAPE AND FOLD TO BE PACKED IN INDIVIDUAL COMBAT MEAL KITS. IF TOO LONG, THE PACKET COULD NOT BE PLACED IN THE KIT WITHOUT OCCUPYING SPACE TO BE USED BY ANOTHER ITEM; IF TOO THICK, THE KIT COULD NOT BE CLOSED AND SEALED. IT WAS DISCOVERED AFTER BID OPENING THAT IT WOULD BE POSSIBLE FOR A SUCCESSFUL BIDDER TO SUPPLY TOILET TISSUE PACKETS WHICH WOULD COMPLY WITH THE SPECIFICATIONS OF THE ORIGINAL INVITATION, BUT THAT SUCH PACKET WOULD NOT BE SUITABLE FOR THE INTENDED USE AND NOT MEET THE ACTUAL NEED OF THE GOVERNMENT. HENCE, IN THE LANGUAGE OF ASPR 2 404.1/B) (I) AND (II) THERE WERE "INADEQUATE * * * SPECIFICATIONS * * * CITED IN THE VITATION," AND THE "SPECIFICATIONS HAVE BEEN REVISED.'

YOUR SECOND CONTENTION IS WITHOUT MERIT SINCE, AS QUOTED ABOVE, THE CONTRACTING OFFICER DID, IN FACT, MAKE THE NECESSARY DETERMINATIONS.

YOUR THIRD CONTENTION THAT YOU WERE NOT FORMALLY NOTIFIED AS TO THE REASON FOR CANCELLATION OF THE INVITATION AS REQUIRED BY ASPR 2-404.3, IS NOT WELL TAKEN EITHER. THIS WAS A CANCELLATION OF THE INVITATION FOR BIDS RATHER THAN A REJECTION OF ALL BIDS. THE CANCELLATION OF THE INVITATION REQUIRES NO FORMAL NOTICE OF REASONS TO THE BIDDERS.

YOUR FOURTH CONTENTION HAS BEEN ANSWERED BY OUR DISCUSSION ABOVE.

YOUR FIFTH CONTENTION THAT THE LOW BIDDER ON THE INITIAL INVITATION SUBMITTED A NONRESPONSIVE BID WHICH SHOULD HAVE BEEN REJECTED IS ALSO INVALID. THE FACT THAT IT WAS A RESPONSIVE BID AND THAT THE ITEM TO BE SUPPLIED BY THIS BIDDER WAS CONSIDERED TO MEET SPECIFICATIONS ALTHOUGH THE ITEM WOULD NOT SERVE THE INTENDED PURPOSE, WAS THE ULTIMATE BASIS FOR THE CANCELLATION OF THE INVITATION AND THE ISSUANCE OF A NEW INVITATION FOR BIDS WITH REVISED SPECIFICATIONS.

IN VIEW OF THE ABOVE, WE PERCEIVE NO BASIS FOR MODIFYING OR REVERSING OUR DECISION OF APRIL 21, 1967, B-160790.