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B-161653, NOV. 9, 1967

B-161653 Nov 09, 1967
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REJECTION OF LOW BID BECAUSE IT WAS CONDITIONED ON RIGHT OF GOVERNMENT TO DISPOSE OF EQUIPMENT PURCHASED WAS PROPER AND TO PERMIT BIDDER TO CHANGE PROPOSAL AFTER OPENING WOULD NOT BE CONDUCIVE TO OPEN AND FREE COMPETITION FOR GOVERNMENT CONTRACTS. THERE IS NO BASIS TO CONCLUDE THAT DESCRIPTION IN INVITATION INVADED PRORIETARY RIGHTS. TO MULTI-AMP CORPORATION: REFERENCE IS MADE TO A LETTER OF AUGUST 16. YOUR BID WAS REJECTED BECAUSE IT CONDITIONED THE RIGHT OF THE GOVERNMENT TO DISPOSE OF THE EQUIPMENT PURCHASED THEREUNDER. YOU ARGUE THAT IF THERE WAS ANY QUESTION ABOUT THE GOVERNMENT'S RECEIVING GOOD TITLE. MULTI-AMP SHOULD HAVE BEEN REQUESTED TO CLARIFY ITS POSITION AND SHOULD NOT HAVE SUFFERED THE PENALTY OF HAVING ITS BID REJECTED WITHOUT THE OPPORTUNITY TO EXPRESS CLEARLY ITS INTENTION.

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B-161653, NOV. 9, 1967

BIDS - DEVIATIONS DECISION TO MULTI-AMP CORP. REAFFIRMING DECISION OF JULY 17, 1967, CONCERNING REJECTION OF BID UNDER INVITATION ISSUED BY BUREAU OF RECLAMATION. REJECTION OF LOW BID BECAUSE IT WAS CONDITIONED ON RIGHT OF GOVERNMENT TO DISPOSE OF EQUIPMENT PURCHASED WAS PROPER AND TO PERMIT BIDDER TO CHANGE PROPOSAL AFTER OPENING WOULD NOT BE CONDUCIVE TO OPEN AND FREE COMPETITION FOR GOVERNMENT CONTRACTS. FURTHER, THERE IS NO BASIS TO CONCLUDE THAT DESCRIPTION IN INVITATION INVADED PRORIETARY RIGHTS.

TO MULTI-AMP CORPORATION:

REFERENCE IS MADE TO A LETTER OF AUGUST 16, 1967, FROM YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF OUR DECISION DATED JULY 17, 1967, WHICH DENIED YOUR PROTEST OF JUNE 7, 1967, AGAINST REJECTION OF MULTI-AMP CORPORATION'S BID UNDER INVITATION NO. (D) J-38, 328-A ISSUED BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR.

YOUR BID WAS REJECTED BECAUSE IT CONDITIONED THE RIGHT OF THE GOVERNMENT TO DISPOSE OF THE EQUIPMENT PURCHASED THEREUNDER. THE LETTER OF AUGUST 16, 1967, REITERATES YOUR INTENTION THAT THE GOVERNMENT WOULD RECEIVE GOOD TITLE NOTWITHSTANDING ANY LEGEND ON YOUR BID. IN ANY EVENT, YOU ARGUE THAT IF THERE WAS ANY QUESTION ABOUT THE GOVERNMENT'S RECEIVING GOOD TITLE, MULTI-AMP SHOULD HAVE BEEN REQUESTED TO CLARIFY ITS POSITION AND SHOULD NOT HAVE SUFFERED THE PENALTY OF HAVING ITS BID REJECTED WITHOUT THE OPPORTUNITY TO EXPRESS CLEARLY ITS INTENTION, PARTICULARLY SINCE ACCEPTANCE OF THE NEXT HIGH BID RESULTED IN A GREATER EXPENSE TO THE GOVERNMENT. AS WE STATED IN OUR PRIOR DECISION, A CONTRACT OFFERED TO THE SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED ALL BIDDERS AND TO PERMIT A BIDDER TO QUALIFY ITS BID AFTER OPENING WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. OUR OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT TO PERMIT BIDDERS TO CHANGE THEIR PROPOSALS AFTER BIDS ARE OPENED, OR TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS AND REQUIREMENTS, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES.

YOU ALSO ALLEGE IN YOUR LETTER THAT THE INVITATION SET FORTH DESIGN SPECIFICATIONS OBTAINED FROM MULTI-AMP'S CATALOG WHICH WERE PROPRIETARY TO MULTI-AMP AS STATED IN THE CATALOG LEGEND. YOU URGE, THEREFORE, THAT THE INVITATION AND CONTRACT WERE ILLEGAL AND IMPROPER. FURTHER, YOU CONTEND THAT TO TREAT THE LEGEND AFFIXED TO THE INVITATION FOR BIDS AS RETAINING PROPRIETARY RIGHTS TO THE EQUIPMENT TO BE PROCURED WHILE TREATING INFORMATION IN YOUR CATALOG WITH THE SAME KIND OF LEGEND AFFIXED AS NOT BEING PROPRIETARY, IS INCONSISTENT. FOR THESE REASONS YOU CONTEND THAT THE PRESENT CONTRACT SHOULD BE TERMINATED.

THE CONTRACTING OFFICER DENIES THAT THE GENERAL DESCRIPTION IN THE INVITATION OF THE SUPPLIES BEING PROCURED SET FORTH ANY DESIGN SPECIFICATIONS WHETHER FROM THE MULTI-AMP CATALOG OR OTHERWISE. COMPARISON OF INVITATION LANGUAGE AND THE DESCRIPTION IN YOUR CATALOG OF THE ITEM YOU OFFERED TO SUPPLY SHOWS DISTINCT AND SIGNIFICANT DIFFERENCES BETWEEN THE TWO. THEREFORE, EVEN ASSUMING THAT THE INFORMATION IN THE CATALOG IS ENTITLED TO PROTECTION AS A TRADE SECRET, WE FIND NO BASIS TO CONCLUDE THAT THE DESCRIPTION OF THE ITEM IN THE INVITATION INVADED YOUR PROPRIETARY RIGHTS.

WE NOTE THAT THE INVITATION WAS ISSUED ON MARCH 10, 1967, WITH BID OPENING MARCH 31, 1967. WHILE MULTI-AMP HAD AMPLE OPPORTUNITY TO STUDY THE INVITATION BEFORE IT RESPONDED THERETO, NO EXCEPTION WAS TAKEN IN ITS BID OR OTHERWISE TO THE ALLEGED PUBLICATION OF THE INFORMATION. IN FACT, THE RECORD DISCLOSES NO SUCH EXCEPTION TO THE LANGUAGE INCLUDED IN THE INVITATION UNTIL AFTER OUR DECISION OF JULY 17, 1967. THE COURTS HAVE TAKEN THE POSITION THAT A PARTY TO MAINTAIN HIS PROPRIETARY RIGHTS IN INFORMATION MUST TAKE REASONABLE ACTION TO PREVENT OR SUPPRESS ITS UNAUTHORIZED USE. SEE, FOR EXAMPLE, FERROLINE CORP. V. GENERAL ANILINE AND FILM CORP., 207 F.2ND 912, 914; GLOBE TICKET CO. V. INTERNATIONAL TICKET CO., 104 A.2ND 92. HERE MULTI-AMP MADE NO ATTEMPT SUBSEQUENT TO ISSUANCE OF THE INVITATION FOR BIDS AGAINST THE ALLEGEDLY IMPROPER DISCLOSURE UNTIL IT BECAME AWARE OF THE FACT THAT IT WAS NOT BEING CONSIDERED FOR AWARD BASED ON OUR DECISION DATED JULY 17, 1967. IN THIS POSTURE OF THE MATTER, COUPLED WITH THE ADMINISTRATIVE DENIAL OF DISCLOSURE, WE MUST CONCLUDE THAT NO SUBSTANTIAL BASIS EXISTS FOR QUESTIONING THE ACTIONS OF THE PROCUREMENT AGENCY IN THIS REGARD. SEE B- 149295, SEPTEMBER 6, 1962; B 153144, JUNE 4, 1964; B-154038, AUGUST 4, 1964; B-154818, NOVEMBER 16, 1964; AND B-160809, JUNE 29, 1967.

ACCORDINGLY, WE FIND NO BASIS FOR MODIFYING OUR DECISION OF JULY 17, 1967, WHICH IS AFFIRMED.

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