B-155853, MAY 5, 1965

B-155853, MAY 5, 1965

TO MR. CLAYTON LEWIS:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 19, 1965, ACKNOWLEDGING RECEIPT OF DECISION B-155853, APRIL 15, 1965, AND CONTENDING THAT IF THE BID SUBMITTED BY YOUR COMPANY UNDER THE ORIGINAL INVITATION WAS NOT RESPONSIVE THEN THE AWARD SHOULD HAVE BEEN MADE TO THE NEXT LOW BIDDER INSTEAD OF READVERTISING THE PROCUREMENT SINCE THERE WERE NO CHANGES OF ANY LEGAL IMPORT BETWEEN THE FIRST AND SECOND INVITATIONS.

WHILE POSSIBLY AN AWARD COULD HAVE BEEN MADE TO THE NEXT LOW BIDDER ON THE ORIGINAL INVITATION, THAT WAS NOT THE ONLY ALTERNATIVE WHICH WAS LEFT TO THE CONTRACTING OFFICE. IN 36 COMP. GEN. 364, 365, WE STATED THAT:

"* * * WE CANNOT, HOWEVER, CONSIDER THE MATTER OF COMPETITIVE BIDDING FOR GOVERNMENT CONTRACTS SOLELY AS A GAME, IN WHICH THE CONTRACT MUST AUTOMATICALLY GO TO THE LOWEST BIDDER WITHOUT REGARD TO THE REASONABLENESS OF HIS PRICE OR TO OTHER ATTEMPTED BIDS WHICH CANNOT FOR TECHNICAL REASONS BE ACCEPTED. * * *"

TO THE SAME EFFECT, OUR OFFICE STATED IN 17 COMP. GEN. 554, 559-560, THAT A PUBLIC OFFICER, ACTING FOR THE GENERAL WELFARE, CAN REQUIRE A REJECTION OF ALL BIDS AND READVERTISEMENT WHEN "DUE TO THE LAPSE OF TIME OR OTHERWISE A MORE ADVANTAGEOUS CONTRACT MIGHT BE OBTAINED.'

FROM THE FOREGOING, WE BELIEVE IT IS EVIDENT THAT OUR OFFICE GENERALLY HAS CONSIDERED THAT THE DETERMINATION WHETHER TO READVERTISE A PROCUREMENT IS LARGELY AN ADMINISTRATIVE MATTER INVOLVING BROAD DISCRETION WITH WHICH OUR OFFICE ORDINARILY DOES NOT INTERFERE.

WE CANNOT AGREE WITH YOUR CONTENTION THAT THE PURPOSE OF READVERTISING WAS TO FAVOR THE BIDDER WHICH BECAME LOW UPON THE READVERTISEMENT. THE CONTRACTING OFFICE HAS INDICATED THAT YOUR COMPANY WAS THE LOW BIDDER UNDER THE ORIGINAL INVITATION AND THAT ITS PURPOSE IN READVERTISING THE PROCUREMENT WAS TO GIVE YOUR COMPANY AN OPPORTUNITY TO BECOME RESPONSIVE. ALTHOUGH UPON READVERTISEMENT SOME OTHER BIDDER NOT ONLY UNDERBID YOUR COMPANY'S PRICE IN THE ORIGINAL INVITATION BUT ALSO UNDERBID YOUR COMPANY'S REDUCED PRICE IN THE READVERTISEMENT, HAD YOUR COMPANY REDUCED ITS PRICE SUFFICIENTLY IN THE READVERTISEMENT IT COULD HAVE AGAIN BEEN THE LOW BIDDER. IN VIEW OF THE MANNER OF SELECTING BIDDERS THROUGH A SEALED BIDDING PROCESS IN WHICH THE SUCCESSFUL BIDDERS ARE DETERMINED BY THE PRICES THEY BID AND SINCE THE ADMINISTRATIVE OFFICE DOES NOT KNOW WHICH WILL BE LOW UNTIL BIDS ARE OPENED, WE DO NOT CONSIDER THAT ANY FAVORITISM WAS SHOWN FOR THE LOW BIDDER ON THE SECOND INVITATION BY CANCELLATION OF THE FIRST INVITATION. IN FACT, AS REPORTED ABOVE, IF THERE WAS ANY PREFERENCE, IT WAS FOR YOUR COMPANY WHICH WAS GIVEN A SECOND CHANCE TO BECOME ELIGIBLE FOR AWARD THROUGH A SECOND ADVERTISEMENT. IF YOUR COMPANY HAD BEEN LOW AND RESPONSIVE ON THE SECOND ADVERTISEMENT WE HAVE NO REASON TO BELIEVE THAT AN AWARD WOULD NOT HAVE BEEN MADE TO IT.

WE ARE ALSO IN RECEIPT OF YOUR LETTER OF APRIL 24, 1965, INDICATING THAT YOU THINK THE SECOND INVITATION FOR BIDS SHOULD HAVE BEEN CANCELED BECAUSE YOU DO NOT BELIEVE THAT AUTHORITY COULD HAVE BEEN GRANTED FOR THE USE OF GOVERNMENT-OWNED TOOLING ON THE PROCUREMENT WITHIN THE TIME PROVIDED FOR THE ADMISSION OF BIDS TO THE INVITATION. HOWEVER, THE PROVISION IN THE INVITATION PERMITTING THE USE OF GOVERNMENT-OWNED TOOLING IS PERMISSIVE, AND IT WAS NOT NECESSARY THAT ANY BIDDER OFFER TO USE GOVERNMENT TOOLING TO BE RESPONSIVE AND YOUR COMPANY WAS NOT PRECLUDED FROM BIDDING ON THE PROCUREMENT AS EVIDENCED BY THE FACT THAT IT DID BID ON THE SECOND INVITATION. IF THE TIME BETWEEN INVITATION ISSUANCE AND BID OPENING ACTUALLY WAS NOT SUFFICIENT TO PERMIT APPROVAL TO BE OBTAINED FROM THE GOVERNMENT FOR THE USE OF GOVERNMENT EQUIPMENT, THEN ALL BIDDERS WOULD HAVE HAD TO BID ON THE BASIS OF CONTRACTOR-OWNED EQUIPMENT AND WOULD HAVE BEEN EQUAL IN THAT RESPECT SO THAT NO BIDDER WOULD HAVE HAD ANY GREATER ADVANTAGE THAN ANY OTHER BIDDER IN THAT RESPECT.

IN THE CIRCUMSTANCES, WE WOULD NOT FEEL JUSTIFIED IN REQUIRING THE CONTRACTING OFFICE TO TAKE ANY OTHER ACTION IN THIS CASE.