B-161235, MAY 31, 1967

B-161235, MAY 31, 1967

TO BARRETT ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1967, AND TELEGRAM OF APRIL 25, PROTESTING THE ACTION OF THE RICHARDS-GEBAUR AIR FORCE BASE IN CANCELLING INVITATION FOR BIDS NO. F23608-67-B-0171 AND THE CONSIDERATION OF A LATE BID UNDER INVITATION FOR BIDS NO. F23608-67- B 0365, COVERING THE READVERTISEMENT OF THE PROCUREMENT.

THE RECORD SHOWS THAT THE FIRST-CITED INVITATION WAS ISSUED ON NOVEMBER 14, 1966, REQUESTING BIDS ON ITEM 1, CONVEYOR SYSTEM, AND ITEM 2, OPERATORLESS TRACTOR SYSTEM. THE BIDS WERE OPENED ON FEBRUARY 10, 1967, AND IT WAS DETERMINED THAT YOUR BID AND THE BID OF THE NEXT HIGHER BIDDER ON ITEM 2 WERE NONRESPONSIVE BECAUSE EACH OF YOU FAILED TO SUBMIT DESCRIPTIVE LITERATURE AS REQUIRED BY PARAGRAPH 41 OF THE ADDITIONAL GENERAL PROVISIONS MADE A PART OF THE INVITATION AND PARAGRAPH 1.2 OF THE OPERATORLESS TRACTOR SYSTEM SPECIFICATIONS. THE HIGH BIDDER ON THIS ITEM DID SUBMIT DESCRIPTIVE LITERATURE; HOWEVER, SINCE THIS HIGH BIDDER QUALIFIED ITS BID ON BOTH ITEMS WITH AN ,ALL OR NONE" PROVISION AND, FURTHER, SINCE IT WAS ALSO THE HIGH BIDDER ON ITEM 1, NO AWARD COULD BE MADE FOR THE OPERATORLESS TRACTOR SYSTEM. THEREAFTER, THE LOW BIDDER ON THE CONVEYOR SYSTEM, ITEM 1, AGREED TO EXTEND THE TIME FOR ACCEPTANCE OF ITS BID IF THE GOVERNMENT WOULD AGREE TO ACCEPT ITS INTERPRETATION OF CONFLICTING PROVISIONS OF THE INVITATION--- THAT PARAGRAPH 3.10.1 OF THE SPECIFICATIONS WHICH CALLED FOR A LINE LOAD OF 30 POUNDS PER FOOT WOULD CONTROL OVER PARAGRAPH 3.10.3 WHICH CALLED FOR A LOAD OF 150 POUNDS PER LINEAL FOOT. WHEN THIS CONTRADICTION WAS BROUGHT TO THE ATTENTION OF THE GOVERNMENT PERSONNEL WHO DRAFTED THE SPECIFICATIONS THEY CONFIRMED THAT THESE TWO PROVISIONS CREATED AN AMBIGUITY AND DID NOT CLEARLY DESCRIBE THE ACTUAL NEEDS OF THE GOVERNMENT. CONSEQUENTLY, SINCE THERE WAS NO RESPONSIVE BID ON THE OPERATORLESS TRACTOR SYSTEM THE CONTRACTING OFFICER CANCELED THE INVITATION AND READVERTISED THE PROCUREMENT.

IT IS YOUR CONTENTION THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS BEING NONRESPONSIVE. YOU ALLEGE THAT PARAGRAPH 41 OF THE ADDITIONAL GENERAL PROVISIONS QUOTED TO YOU BY THE ADMINISTRATIVE AGENCY DID NOT SPECIFY A DATE OR TIME BY WHICH THE DESCRIPTIVE LITERATURE MUST BE FURNISHED AND THAT YOU ARE READY AT THIS TIME TO FURNISH THE DATA YOU SAY YOU DID NOT FURNISH THE LITERATURE WITH YOUR BID BECAUSE THE SPECIFICATIONS WERE WRITTEN AROUND YOUR EQUIPMENT AND ALSO THE POSSIBILITY EXISTED THAT AN ITEM LISTED IN THE LITERATURE MIGHT BE IN CONFLICT WITH A DETAILED REQUIREMENT OF THE GOVERNMENT SPECIFICATIONS. YOU FURTHER ALLEGE THAT THE CANCELLATION OF THE INVITATION AFTER YOUR BID PRICE WAS DISCLOSED HAS RESULTED IN AN AUCTION-TYPE SITUATION WHICH IS DETRIMENTAL TO YOU.

WE HAVE RECOGNIZED THAT AN ADMINISTRATIVE AGENCY PROPERLY MAY DEEM THE SUPPLYING OF DESCRIPTIVE DATA AS ESSENTIAL TO ITS DETERMINATION AS TO WHETHER THE PROPOSED EQUIPMENT MEETS THE REQUIREMENTS OF THE GOVERNMENT, AND TO ENABLE IT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF FOT PURCHASE BY THE MAKING OF AN AWARD. IN SUCH CIRCUMSTANCES, IN OUR VIEW IT IS APPROPRIATE FOR THE INVITATION TO CONDITION THE CONSIDERATION AND EVALUATION OF A BID UPON THE FURNISHING OF DESCRIPTIVE DATA. WHILE YOU ALLEGE THAT THE PORTION OF PARAGRAPH 41 OF THE ADDITIONAL GENERAL PROVISIONS QUOTED TO YOU BY THE ADMINISTRATIVE OFFICE DOES NOT SPECIFY A DATE OR TIME BY WHICH THE LITERATURE MUST BE FURNISHED WE NOTE THAT THE FIRST SENTENCE OF THAT PARAGRAPH SPECIFICALLY PROVIDES THAT "DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS.' IN VIEW THEREOF, IT IS CLEAR THAT A BID SUBMITTED WITHOUT THE REQUIRED DESCRIPTIVE LITERATURE MUST BE CONSIDERED NONRESPONSIVE. SEE 44 COMP. GEN, 833, 836; 39 ID. 595, 597; 37 ID. 763, 765. ACCORDINGLY, WE THINK THAT THE REJECTION OF YOUR BID AS NONRESPONSIVE WAS PROPER IRRESPECTIVE OF THE REASONS ADVANCED BY YOU AS TO WHY YOU DID NOT SUBMIT THE LITERATURE WITH YOUR BID.

REGARDING YOUR CONTENTION THAT AN AUCTION-TYPE SITUATION HAS RESULTED, INASMUCH AS THE GOVERNMENT DETERMINED THAT NO RESPONSIVE BID HAD BEEN RECEIVED ON THE OPERATORLESS TRACTOR SYSTEM AND SINCE THE SPECIFICATIONS WERE AMBIGUOUS REGARDING THE CONVEYOR SYSTEM WE THINK THAT THE ADMINISTRATIVE OFFICE ACTED IN GOOD FAITH IN REJECTING ALL BIDS AND READVERTISING THE PROCUREMENT. IN THAT CONNECTION, THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS HAVE HELD CONSISTENTLY THAT THE QUESTION OF REJECTING ALL BIDS IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND THAT A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED. SEE 41 COMP. GEN. 709, 711, AND CASES CITED THEREIN. SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE OFFICERS ABUSED THEIR DISCRETIONARY POWERS IN REJECTING ALL THE BIDS, THIS OFFICE WILL NOT OBJECT TO SUCH ACTION. THE DISCLOSURE OF THE PRICES BID IS A REGRETTABLE INCIDENT OF SUCH ACTION WHICH, OF COURSE, SHOULD BE AVOIDED--- WHEREVER POSSIBLE, BUT IN THIS INSTANCE WE VIEW THIS CONSEQUENCE AS MORE DESIRABLE THAN WOULD BE THE ACCEPTANCE OF YOUR NONRESPONSIVE BID.

REGARDING THE LATE BID OF MECHANICAL HANDLING SYSTEMS INC. UNDER THE REPROCUREMENT, THE RECORD SHOWS THAT IT WAS REGISTERED AND SENT BY AIRMAIL, SPECIAL DELIVERY FROM DETROIT, MICHIGAN, ON APRIL 20, 1967. THE POST OFFICE DEPARTMENT HAS ADVISED THAT THE BID WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN THE BASE PROCUREMENT OFFICE BY 10 A.M., APRIL 24, 1967, THE TIME AND DATE SPECIFIED IN THE INVITATION AND THAT THE DELAY IN ITS RECEIPT WAS ATTRIBUTABLE TO ERRONEOUS ROUTING BY THE POST OFFICE DEPARTMENT. UNDER THE PROVISIONS OF ASPR 2-303.3 A LATE BID RECEIVED BEFORE AWARD MAY BE CONSIDERED IF IT IS SENT BY REGISTERED MAIL AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IN ADDITION, ASPR 2-303.3 (C) PROVIDES THAT INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED FROM THE POST OFFICE DEPARTMENT.

SINCE THE EVIDENCE OBTAINED FROM THE POST OFFICE ESTABLISHES THAT THE DELAY IN RECEIPT OF MECHANICAL'S BID WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, THE ADMINISTRATIVE ACTION IN CONSIDERING THE BID FOR AWARD WAS PROPER.

IT IS NOTED THAT MECHANICAL FAILED TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT TO THE INVITATION. THAT AMENDMENT CLARIFIED AN AMBIGUITY EXISTING BETWEEN PARAGRAPHS 3.3.5 AND 3.5.3.1 OF THE SPECIFICATIONS. PARAGRAPH 3.3.5 CALLED FOR A STATION PROGRAMMING PANEL WITH A MINIMUM OF 40 STATION SELECTIONS. PARAGRAPH 3.5.3.1 CALLED FOR A CONTROL PANEL WITH A MINIMUM OF 30 STATION SELECTIONS. THE AMENDMENT REDUCED THE AMOUNT OF STATION SELECTIONS CALLED FOR TO A MINIMUM OF 30. IT IS REPORTED THAT THE ONLY EFFECT OF THE REDUCTION OF THE NUMBER OF STATION SELECTIONS REQUIRED WOULD BE A REDUCTION IN PRICE.

IT IS THE GENERAL RULE THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. HOWEVER, THE GENERAL RULE HAS NOT BEEN APPLIED INDISCRIMINATELY BY THIS OFFICE TO PREVENT WAIVER IN ALL CASES INVOLVING FAILURE TO ACKNOWLEDGE AMENDMENTS. WAIVER HAS BEEN PERMITTED WHERE THE MODIFICATION COULD HAVE AFFECTED THE COST OF THE WORK ONLY TO A NEGLIGIBLE DEGREE, 34 COMP. GEN. 581; OR WHERE THE ADDITIONAL COST WAS TRIVIAL WHEN COMPARED WITH THE TOTAL COST OF THE WORK. 4 COMP. GEN. 753. IN THE CIRCUMSTANCES OF THE INSTANT CASE IT IS CLEAR THAT NO PREJUDICE COULD RESULT TO THE OTHER BIDDERS BY THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE AMENDMENT. IN FACT, IF THE LOW BIDDER'S FAILURE TO AKNOWLEDGE THE AMENDMENT WAS DUE TO IGNORANCE OF ITS EXISTENCE, THEN HIS BID PRICE WOULD NOT REFLECT THE LESSENED REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, HIS FAILURE TO ACKNOWLEDGE WOULD ONLY BE PREJUDICIAL TO HIS COMPETITIVE POSITION. SEE 41 COMP. GEN. 550.