B-157063, OCT. 27, 1965

B-157063, OCT. 27, 1965

TO SKAGGS LANDSCAPE GARDENS, INC.:

WE HAVE FOR REPLY YOUR LETTER OF SEPTEMBER 17, 1965, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES AND ENCLOSING A COPY OF OUR DECISION OF SEPTEMBER 14, 1965, B-157063, TOGETHER WITH A COPY OF YOUR LETTER TO THIS OFFICE, WHICH IS ALSO DATED SEPTEMBER 17, 1965.

YOU ASK TO BE PLACED IN TOUCH WITH THE PROPER AUTHORITIES IN WASHINGTON WHO CAN REVIEW OUR DECISION OF SEPTEMBER 14. WHILE THE DECISIONS OF OUR OFFICE ARE SUBJECT TO RECONSIDERATION IF MISTAKE OF FACT OR LAW IS ALLEGED AND SHOWN, SUCH DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND THE LAW MAKES NO PROVISION FOR APPEAL THEREFROM. OUR DECISIONS ARE NOT, HOWEVER, BINDING UPON THE COURTS, AND IF YOU FEEL THAT YOU HAVE A VALID CLAIM AGAINST THE UNITED STATES ARISING OUT OF THE AWARD OF A CONTRACT FOR LANDSCAPING REPAIR TO BLOUNTSTOWN MEMORIAL SERVICE UNDER IFB NO. 08-637-65-178, YOU MAY, OF COURSE, INSTITUTE AN APPROPRIATE LEGAL ACTION FOR THAT PURPOSE.

CONCERNING THE STATEMENTS CONTAINED IN YOUR LETTER TO THIS OFFICE OF SEPTEMBER 17, ONE OF WHICH IS THAT THE LEGAL REFERENCES MADE IN OUR DECISION OF SEPTEMBER 14 DO NOT MEAN ANYTHING TO YOU, YOU ARE ADVISED THAT THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REFERENCED IN THE DECISION ESTABLISHES UNIFORM POLICIES AND PROCEDURES RELATING TO THE PROCUREMENT OF SUPPLIES AND SERVICES BY THE DEPARTMENT OF DEFENSE, AND THE PROVISIONS OF THAT REGULATION HAVE DIRECT APPLICATION TO THE AWARDING OF CONTRACTS BY THE DEPARTMENT OF THE AIR FORCE FOR THE PROCUREMENT OF SUPPLIES OR SERVICES SUCH AS THAT WHICH WAS THE SUBJECT OF YOUR PROTEST.

REGARDING THE $87,636.65 FIGURE SHOWN AS THE TOTAL AMOUNT OF YOUR BID, WE POINTED OUT IN OUR DECISION THAT SUCH AMOUNT COULD NOT BE USED AS YOUR BID PRICE BY REASON OF THE MISTAKES MADE IN EXTENDING OR MULTIPLYING THE UNIT PRICES SHOWN FOR ITEMS 2C, 2M, 2W, AND 5, AND THE EXPRESS STIPULATION IN THE IFB THAT IN THE EVENT OF ANY ERROR IN EXTENSION THE UNIT PRICES SHOULD CONTROL. WE FURTHER EXPLAINED THAT UNDER APPLICABLE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION A BIDDER MAY BE PERMITTED TO WITHDRAW HIS BID WHERE HIS REQUEST TO DO SO IS SUPPORTED BY EVIDENCE OF A MISTAKE THEREIN, AND THAT THERE IS A MATERIAL DIFFERENCE BETWEEN THE EVIDENTIARY REQUIREMENTS PRESCRIBED FOR THE WITHDRAWAL OF A BID AND THOSE WHICH ARE NECESSARY FOR THE CORRECTION OF A BID WHEN THE CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS. THE DECISION ALSO EXPLAINS HOW THE MATTER OF BLOUNTSTOWN'S ABILITY TO PERFORM THE WORK WAS PROPERLY DETERMINED BY THE SMALL BUSINESS ADMINISTRATION PURSUANT TO THE PERTINENT PROVISIONS OF ASPR AND THE SMALL BUSINESS ACT. WE WISH TO ALSO ADVISE YOU THAT THERE IS NO REQUIREMENT IN LAW, OR BY IMPLEMENTING REGULATIONS, THAT THE EXECUTIVE DEPARTMENTS SUBMIT PROPOSED CONTRACTS TO THIS OFFICE FOR REVIEW PRIOR TO THEIR AWARD.

CONCERNING YOUR INQUIRY AS TO WHY A BID BOND WAS NOT REQUIRED IN THE PROCUREMENT, PARAGRAPH 10-102.2 OF ASPR PROVIDES THAT SUCH BID GUARANTEES SHALL NOT BE REQUIRED UNLESS THE SOLICITATION SPECIFIES THAT THE CONTRACT MUST BE SUPPORTED BY A PERFORMANCE BOND OR PERFORMANCE AND PAYMENT BONDS. PARAGRAPH 10-104.1 PROVIDES GENERALLY THAT PERFORMANCE AND PAYMENT BONDS SHALL NOT BE REQUIRED IN CONNECTION WITH CONTRACTS OTHER THAN CONSTRUCTION CONTRACTS UNLESS THE REQUIREMENT FOR SUCH BONDS IS DETERMINED BY THE CONTRACTING OFFICER TO BE NECESSARY IN ORDER TO PROTECT THE INTERESTS OF THE GOVERNMENT AND IS NOT PREJUDICIAL TO OTHER BIDDERS. WE FIND NOTHING IN THE RECORD TO INDICATE THAT PERFORMANCE AND PAYMENT BONDS WERE ESSENTIAL TO THE PROTECTION OF THE GOVERNMENT'S INTERESTS IN THIS PROCUREMENT, OR THAT THE CONTRACTING OFFICER ERRED IN NOT REQUIRING SUCH BONDS.

WE SUGGESTED IN OUR DECISION TO YOU THAT CANCELLATION OF THE CONTRACT PROPERLY AWARDED TO BLOUNTSTOWN WOULD AMOUNT TO A BREACH THEREOF SUBJECTING THE GOVERNMENT TO LIABILITY FOR DAMAGES, AND YOU STATE THAT IT SEEMS THAT YOU SHOULD HAVE THE SAME PRIVILEGE. INASMUCH AS THE SUBJECT CONTRACT WAS NOT AWARDED TO YOUR FIRM, AND AS THERE IS NO INDICATION THAT YOU ARE IN ANY WAY INVOLVED IN ITS PERFORMANCE, IT DOES NOT APPEAR THAT A BREACH THEREOF WOULD SERVE AS A BASIS FOR SUIT BY YOU. FURTHER, WE PERCEIVE NO BASIS UPON WHICH THE GOVERNMENT MIGHT BE HELD LIABLE IN A SUIT INSTITUTED BY YOU IN CONNECTION WITH THE AWARDING OF SUCH CONTRACT OF PURSUING SUCH A COURSE OF ACTION IS A MATTER SOLELY FOR YOUR DETERMINATION.

WE REGRET THAT YOU FEEL THAT THE CONTRACT WAS NOT PROPERLY AWARDED, HOWEVER, UPON REVIEW, OF THE AWARD WE FIND NO VALID BASIS, UNDER THE TERMS AND CONDITIONS OF THE INVITATION AND THE APPLICABLE REGULATIONS, TO QUESTION THE PROPRIETY OF THE AIR FORCE'S ACTION IN AWARDING A CONTRACT TO BLOUNTSTOWN.

ACCORDINGLY, OUR DECISION OF SEPTEMBER 14, WHICH DENIED YOUR PROTEST AGAINST SUCH ACTION, IS AFFIRMED.