B-168080 (1), FEB. 3, 1970

B-168080 (1), FEB. 3, 1970

BID PROTEST--REJECTION AND READVERTISEMENT DECISION DENYING PROTEST OF CENTRAL BUILDING MAINTENANCE, INC; AGAINST REJECTION OF ALL BIDS AND CANCELLATION OF INVITATION ISSUED BY NAVAL OBSERVATORY FOR CUSTODIAL SERVICES. WHERE, AFTER LOW BIDDER FAILED TO SUBMIT ALL SPECIFICATIONS THAT HAD BEEN ATTACHED TO INVITATION, BIDS WERE REJECTED AND INVITATION CANCELED ON BASIS THAT INVITATION WAS DEFECTIVE BECAUSE IT DID NOT INCORPORATE ALL MATERIAL PROVISIONS, IT CANNOT BE CONCLUDED THAT CANCELLATION WAS ARBITRARY.

TO CENTRAL BUILDING MAINTENANCE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1969, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) N62477-70-C-1066, WHICH WAS ISSUED BY THE U.S. NAVAL OBSERVATORY, WASHINGTON, D.C; FOR CUSTODIAL SERVICES AT THE FACILITY.

IN THE PORTION OF THE FACE SHEET OF THE SOLICITATION HEADED "INVITATION FOR BIDS," BIDDERS WERE ADVISED AS FOLLOWS:

"SEALED BIDS IN DUPLICATE, SUBJECT TO (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, (2) THE SCHEDULE, (3) THE GENERAL PROVISIONS, AND (4) ANY OTHER CONTRACT PROVISIONS OR SPECIFICATIONS ATTACHED OR INCORPORATED BY REFERENCE WILL BE RECEIVED AT THE ABOVE OFFICE UNTIL 3 O'CLOCK P.M; EDST TIME. 6 OCTOBER 1969 (DATE), AND AT THAT TIME PUBLICLY OPENED, FOR PERFORMING THE SERVICES DESCRIBED IN THE SCHEDULE. GENERAL INFORMATION AND INSTRUCTIONS TO BIDDERS ARE CONTAINED IN THE TERMS AND CONDITIONS ON THE REVERSE HEREOF." THE SCHEDULE FURTHER ADVISED BIDDERS THAT THE PRICES THEY SUBMITTED WOULD BE FOR "ALL WORK COMPLETE IN ACCORDANCE WITH DRAWINGS AND SPECIFICATIONS."

WHEN BIDS WERE OPENED ON OCTOBER 6, 1969, IT WAS NOTED THAT THE LOW BIDDER, SHIP SHAPE MAINTENANCE CO; INC; HAD FAILED TO SUBMIT THE SPECIFICATIONS AND GENERAL PROVISIONS WITH ITS BID, ALL OF WHICH HAD BEEN ATTACHED TO THE SOLICITATION BY THE PROCURING ACTIVITY. THESE PROVISIONS STATED WHERE, WHEN AND IN WHAT MANNER THE SERVICES WERE TO BE PERFORMED, SO THAT A BID COULD NOT BE CONSIDERED RESPONSIVE IF IT DID NOT EVIDENCE AN INTENT TO BIND THE BIDDER TO THE TERMS OF THESE SPECIFICATIONS. 49 COMP. GEN. , (B-167305, OCTOBER 31, 1969). YOU CONTEND THAT THE LOW BID WAS NONRESPONSIVE BY REASON OF THE FAILURE TO RETURN THESE SPECIFICATIONS, AND THEREFORE AN AWARD SHOULD BE MADE TO YOU AS THE SECOND LOWEST BIDDER, SINCE YOUR BID CLEARLY INDICATED AN INTENT TO BIND YOUR CONCERN TO ALL TERMS SET FORTH IN THE DOCUMENTS OF THE SOLICITATION.

IN REPORTS DATED OCTOBER 30, 1969, AND DECEMBER 18, 1969, THE PROCURING ACTIVITY ADVISED THAT IT HAD DECIDED TO CANCEL THE SUBJECT IFB BECAUSE IT CONSIDERED THE INVITATION FATALLY DEFECTIVE SINCE THE SCHEDULE PROVISION, QUOTED ABOVE, DID NOT ADEQUATELY INCORPORATE BY REFERENCE ALL MATERIAL PROVISIONS OF THE BID PACKAGE, AS THE ACTIVITY HAD INTENDED. THE INVITATION WAS THEREFORE CANCELLED PURSUANT TO THE AUTHORITY SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 404.1 (B) AS FOLLOWS:

"(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;

"(III) THE SUPPLIES OR SERVICES BEING PROCURED ARE NO LONGER REQUIRED;

"(IV) THE INVITATION DID NOT PROVIDE FOR CONSIDERATION OF ALL FACTORS OF COST TO THE GOVERNMENT, SUCH AS COST OF TRANSPORTING GOVERNMENT FURNISHED PROPERTY TO BIDDERS' PLANTS;

"(V) BIDS RECEIVED INDICATE THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ON WHICH THE BIDS WERE INVITED;

"(VI) ALL OTHERWISE ACCEPTABLE BIDS RECEIVED ARE AT UNREASONABLE PRICES;

"(VII) THE BIDS WERE NOT INDEPENDENTLY ARRIVED AT IN OPEN COMPETITION, WERE COLLUSIVE, OR WERE SUBMITTED IN BAD FAITH (SEE 1-111 FOR REPORTS TO BE MADE TO DEPARTMENT OF JUSTICE); OR

"(VIII) FOR OTHER REASONS, CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT." BECAUSE OF THE URGENT NEED FOR CLEANING SERVICES AT THE OBSERVATORY, THE PROCUREMENT WAS READVERTISED AND AN AWARD WAS CONCLUDED WITH SHIP SHAPE MAINTENANCE.

THIS OFFICE HAS RECOGNIZED THAT THE AUTHORITY VESTED IN THE CONTRACTING OFFICER TO REJECT ANY OR ALL BIDS AND CANCEL AN INVITATION IS EXTREMELY BROAD. 39 COMP. GEN. 396, 399 (1959). MOREOVER, ASPR 2 404.1 (B) (I), NOTED ABOVE, SPECIFICALLY PROVIDES FOR CANCELLATION OF INVITATIONS FOR BIDS AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE SPECIFICATIONS WERE CITED IN THE INVITATION. IN VIEW THEREOF, AND SINCE THE PROCURING ACTIVITY IS OF THE OPINION THAT IT FAILED TO ADEQUATELY PROVIDE FOR THE INCORPORATION BY REFERENCE OF ALL IFB PROVISIONS, WE CANNOT CONCLUDE THAT THE CANCELLATION OF THE SUBJECT IFB WAS ARBITRARY, OR THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION IN DIRECTING CANCELLATION OF THE INVITATION.