B-165799, MAR. 25, 1969
Highlights
SECRETARY: REFERENCE IS MADE TO OUR DECISION. ENCLOSED IS A COPY OF OUR LETTER OF THIS DATE REAFFIRMING THAT DECISION. WHICH IS ESSENTIALLY AS REQUIRED BY ASPR 13-502.2. IS HAVING THE ADVERSE EFFECT OF FRUSTRATING THE POLICY OF MAXIMUM USE OF GOVERNMENT PROPERTY IN BIDDER'S POSSESSION. DUE TO DIFFICULTIES WHICH ARE ENCOUNTERED IN OBTAINING THE APPROPRIATE APPROVAL FOR RENT-FREE USE COUPLED WITH THE PENALTY OF BID REJECTION FOR FAILURE TO SUBMIT PERMISSION WITH THE BID. THE NET RESULT OF THE PRESENT CLAUSE AND REGULATION SEEMS TO BE EITHER TO ENCOURAGE A CONTRACTOR NOT TO BID ON THE BASIS OF USING GOVERNMENT PROPERTY OR TO DO SO ON A RENT-CHARGE BASIS SO THAT ANY FAILURE TO OBTAIN PERMISSION WILL NOT RENDER HIS BID NONRESPONSIVE.
B-165799, MAR. 25, 1969
TO MR. SECRETARY:
REFERENCE IS MADE TO OUR DECISION, B-165799, DATED FEBRUARY 27, 1969, DENYING THE PROTEST BY BARRY MILLER, INCORPORATED, UNDER INVITATION FOR BIDS NO. N00017-69-B-2009, ISSUED BY THE NAVAL ORDNANCE COMMAND. LETTERS DATED MARCH 3 AND MARCH 5, 1969, ATTORNEYS FOR THE PROTESTANT REQUESTED RECONSIDERATION OF THE ABOVE DECISION. ENCLOSED IS A COPY OF OUR LETTER OF THIS DATE REAFFIRMING THAT DECISION.
IN OUR RECONSIDERATION, CONSIDERABLE CONCERN HAS ARISEN RESPECTING PARAGRAPH 44 OF ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH GOVERNS USE OF GOVERNMENT PROPERTY IN THE BIDDER'S POSSESSION. IT HAS COME TO OUR ATTENTION THAT SUBPARAGRAPH IV, ELIMINATING COMPETITIVE ADVANTAGES, SECTION (A), RENT-FREE USE, WHICH IS ESSENTIALLY AS REQUIRED BY ASPR 13-502.2, IS HAVING THE ADVERSE EFFECT OF FRUSTRATING THE POLICY OF MAXIMUM USE OF GOVERNMENT PROPERTY IN BIDDER'S POSSESSION, ASPR 13-401, AND FOR SUCH USE TO BE WITHOUT CHARGE WHEN POSSIBLE, ASPR 13-402 (B) (2).
DUE TO DIFFICULTIES WHICH ARE ENCOUNTERED IN OBTAINING THE APPROPRIATE APPROVAL FOR RENT-FREE USE COUPLED WITH THE PENALTY OF BID REJECTION FOR FAILURE TO SUBMIT PERMISSION WITH THE BID, THE NET RESULT OF THE PRESENT CLAUSE AND REGULATION SEEMS TO BE EITHER TO ENCOURAGE A CONTRACTOR NOT TO BID ON THE BASIS OF USING GOVERNMENT PROPERTY OR TO DO SO ON A RENT-CHARGE BASIS SO THAT ANY FAILURE TO OBTAIN PERMISSION WILL NOT RENDER HIS BID NONRESPONSIVE.
ACCORDINGLY, WE ARE BRINGING THIS MATTER TO THE ATTENTION OF THE ARMED SERVICES PROCUREMENT REGULATION COMMITTEE FOR POSSIBLE MODIFICATION OF THE PERTINENT REGULATION. WE SUGGEST THE POSSIBILITY OF PLACING BIDDERS ON SHARPER NOTICE AS TO THE INFORMATION REQUIRED TO BE SUBMITTED WITH THEIR BIDS. WHILE WE RECOGNIZE THAT THE PRESENT CLAUSE DOES IN FACT SET OUT THE INFORMATION REQUIRED BY ASPR, IT IS POSSIBLE THAT THE USE OF BOLD TYPE OR OTHER SUCH METHODS OF ALERT MIGHT MINIMIZE THE PRESENT UNDERSIRABLE RESULTS UNTIL THE SITUATION CAN BE FULLY RECTIFIED.