B-122518, APRIL 18, 1955, 34 COMP. GEN. 535

B-122518, APRIL 18, 1955, 34 COMP. GEN. 535

CONTRACTS - AWARDS - AFTER REJECTION OF BIDS A LOW BID FOR GENERATOR SETS WHICH WAS REJECTED ALONG WITH THE OTHER BIDS BECAUSE THE PROCUREMENT REQUISITION WAS INADVERTENTLY CANCELED MAY BE ACCEPTED 35 DAYS LATER WHEN THE REQUISITION IS REINSTATED WITHOUT CONTRAVENING THE STATUTES REQUIRING ADVERTISEMENT.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE ARMY, APRIL 18, 1955:

REFERENCE IS MADE TO LETTER OF MARCH 22, 1955, WITH ENCLOSURES, FROM MR. FRANK H. HIGGINS, ASSISTANT SECRETARY ( LOGISTICS AND R AND D), REQUESTING A DECISION AS TO WHETHER INVITATION FOR BIDS NO. DA-ENG-11 184-55-F-107, DATED NOVEMBER 1, 1954, WHICH WAS PREVIOUSLY CANCELED, MAY BE REINSTATED AND AWARD MADE ON THE BASIS OF THE BID OF ATLANTIC EQUIPMENT COMPANY, INC., SUBMITTED IN RESPONSE TO THE INVITATION.

THE RECORD INDICATES THAT, PURSUANT TO AIR FORCE REQUISITION NO. MIPR 40- 604-4-19F-2048, THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, ISSUED INVITATION FOR BIDS NO. DA-ENG-11-184-55-F-107 FOR FURNISHING 60 DIESEL DRIVEN PORTABLE 100-1KW GENERATOR SETS. IN RESPONSE TO THE INVITATION, 19 BIDS WERE RECEIVED. UPON OPENING THE BIDS ON NOVEMBER 30, 1954, IT WAS FOUND THAT ATLANTIC EQUIPMENT COMPANY, INC., SUBMITTED THE LOWEST BID.

DURING THE PERIOD INVOLVED IN MAKING A SURVEY TO DETERMINE WHETHER ATLANTIC EQUIPMENT COMPANY, INC., WAS QUALIFIED TO FURNISH PERFORMANCE UNDER ITS LOW BID, THE ATLANTIC MANUFACTURING COMPANY FILED A PROTEST HERE AGAINST CONSIDERATION OF THE LOW BID ON THE BASIS THAT ATLANTIC EQUIPMENT COMPANY, INC., DOES NOT HAVE FACILITIES NECESSARY TO FURNISH THE GENERATOR SETS. IN RESPONSE TO OUR REQUEST FOR A REPORT, YOUR DEPARTMENT ADVISED BY LETTER OF FEBRUARY 24, 1955, THAT, ON JANUARY 27, 1955, PRIOR TO DEVELOPMENT AND ASSEMBLY OF INFORMATION REQUIRED BY THE PROCUREMENT CONTRACT REVIEW BOARD FOR DETERMINING THE QUALIFICATIONS OF ATLANTIC EQUIPMENT COMPANY, INC., THE AIR FORCE ADVISED THE OFFICE, CHIEF OF ENGINEERS, THAT IT WAS CANCELLING THE PROCUREMENT REQUEST FOR THE GENERATOR SETS. IT WAS REPORTED THAT, AS A RESULT, THE INQUIRY INTO THE LOW BIDDER'S QUALIFICATIONS WAS NOT NECESSARY AND, THEREFORE, WAS NOT COMPLETED. THE RECORD INDICATES THAT ALL BIDDERS WERE NOTIFIED BY TELETYPE ON JANUARY 27 AND 28, 1955, THAT THE BIDS WERE REJECTED FOR THE REASON THAT THE REQUISITION FOR THE GENERATOR SETS HAD BEEN CANCELED.

IT IS STATED IN THE LETTER OF MARCH 22, THAT THE AIR FORCE NOW REQUIRES NOT ONLY THE 60 GENERATOR SETS COVERED BY THE REQUISITION WHICH IT WITHDREW BUT, ALSO, AN ADDITIONAL 303 IDENTICAL SETS, AND THAT, PURSUANT TO SUCH REQUIREMENT, AIR FORCE REQUISITION NO. MIPR 40 604-5-ENG-246 FOR 363 GENERATOR SETS WAS RECEIVED IN THE CHICAGO PROCUREMENT OFFICE ON FEBRUARY 23, 1955. ON MARCH 2, 1955, THE AIR FORCE ADVISED THE CHICAGO PROCUREMENT OFFICE THAT REQUISITION NO. MIPR 104-606-4-19F-2048 HAD BEEN WITHDRAWN THROUGH INADVERTENCE AND THAT, UNLESS THE CORPS OF ENGINEERS DETERMINED THAT ATLANTIC EQUIPMENT COMPANY, INC., WAS NOT QUALIFIED TO FURNISH PERFORMANCE, THE AIR FORCE WAS PREPARED TO REINSTATE THE REQUISITION AND RECOMMEND THAT AWARD BE MADE ON THAT COMPANY'S BID SUBMITTED IN RESPONSE TO CANCELED INVITATION FOR BIDS NO. DA-ENG-11-184-55 -F-107.

FOLLOWING THE RECEIPT OF SUCH INFORMATION, A FURTHER INVESTIGATION WAS MADE CONCERNING THE COMPANY'S QUALIFICATIONS AND, FOR THE REASONS STATED IN A MEMORANDUM DATED MARCH 18, 1955, FROM THE OFFICE, CHIEF OF ENGINEERS, TO THE ASSISTANT SECRETARY, IT WAS RECOMMENDED THAT THE COMPANY BE CONSIDERED TO BE A QUALIFIED AND RESPONSIBLE BIDDER. THERE CAN BE NO QUESTION THAT THE UNITED STATES MAY PROPERLY READVERTISE FOR BIDS OR THAT THE SUCCESSFUL BIDDER PROPERLY MAY NOW REFUSE TO ACCEPT A CONTRACT ON THE BASIS OF ITS BID. ASSUMING, HOWEVER, THAT THE ATLANTIC EQUIPMENT COMPANY IS FOUND TO BE A QUALIFIED BIDDER AND IS NOW WILLING TO ACCEPT A CONTRACT ON THE BASIS OF ITS BID AND THAT, IN YOUR ESTIMATION, IT WOULD BE IN THE INTEREST OF THE UNITED STATES TO AWARD THE CONTRACT TO THAT COMPANY, QUESTION ARISES AS TO WHETHER SUCH AWARD WOULD BE CONTRARY TO THE STATUS REQUIRING ADVERTISEMENT FOR BIDS.

IN THE CASE OF ROSS V. STACKHOUSE, 16 N.E. 501, INVOLVING A SIMILAR SITUATION, IT WAS HELD THAT WHERE A CITY COUNCIL, AFTER PROPERLY ADVERTISING THE LETTING OF A CONTRACT FOR A STREET IMPROVEMENT, AND RECEIVING BIDS THEREFOR, VOTED TO REJECT ALL BIDS BUT SUBSEQUENTLY RECONSIDERED ITS ACTION AND ACCEPTED ONE OF THE BIDS WITHOUT ORDERING A NEW ADVERTISEMENT, THE RESULTING CONTRACT WAS VALID. SEE ALSO CITY OF SAND SPRINGS, ET AL. V. HOHL, ET AL., 216 P. 138 AND 19 COMP. GEN. 356. ALSO, IT HAS BEEN STATED THAT TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS. MASSMAN CONSTRUCTION CO. V. UNITED STATES, 102 C.1CLS. 699. LIKEWISE, IT WOULD BE AN EQUALLY SERIOUS MATTER TO REFUSE TO GIVE FURTHER RECONSIDERATION TO THE PREVIOUS BIDS SUBMITTED UNLESS THERE EXIST COMPELLING REASONS FOR NOT DOING SO.

IN THE CITED CASES THE PERIOD WHICH ELAPSED BETWEEN THE DATES ON WHICH THE BIDS WERE OPENED AND THE DATES ON WHICH THE INVITATIONS FOR BIDS WERE REINSTATED AFTER HAVING BEEN CANCELLED WERE NOT SO LONG AS THE PERIOD HERE INVOLVED. HOWEVER, AS WILL BE NOTED FROM THE FACTS RELATED ABOVE, ON JANUARY 27, 1955, THE DATE ON WHICH THE REQUISITION WAS CANCELLED, THE DEPARTMENT OF THE ARMY HAD UNDER CONSIDERATION THE MATTER OF THE QUALIFICATIONS OF THE LOW BIDDER, THE DETERMINATION OF WHICH QUESTION WAS BEING HELD IN ABEYANCE PENDING THE RECEIPT OF ADDITIONAL INFORMATION. IS UNDERSTOOD THAT, AT THAT TIME, THE DEPARTMENT OF THE AIR FORCE HAD RECEIVED FROM ITS DEPOTS REQUISITIONS FOR 363 GENERATOR SETS; HENCE, THE REASON FOR ITS DETERMINATION THAT THE CANCELLATION OF THE REQUISITION WAS INADVERTENT. APPROXIMATELY 4 WEEKS LATER, 10N FEBRUARY 25, THE AIR FORCE PROCESSED A REQUISITION FOR THIS QUANTITY TO THE CHICAGO PROCUREMENT OFFICE OF THE DEPARTMENT OF THE ARMY. ON MARCH 3, THE AIR FORCE FILED ITS REQUEST THAT THE INITIAL INVITATION FOR BIDS BE REINSTATED. ACCORDINGLY, IT IS SEEN THAT A PERIOD OF ONLY ABOUT 35 DAYS TRANSPIRED FROM THE TIME THE INVITATION FOR BIDS WAS CANCELLED AND THE DATE ON WHICH THE AIR FORCE REQUESTED THAT IT BE REINSTATED. MOREOVER, IF THE ORIGINAL INVITATION FOR BIDS HAD NOT BEEN CANCELLED, THE CORPS OF ENGINEERS WOULD HAVE DELAYED MAKING THE AWARD FOR A PORTION, AT LEAST, OF THIS PERIOD IN DETERMINING THE QUALIFICATIONS OF THE LOW BIDDER. THEREFORE, ON THE BASIS OF THE FOREGOING FACTS, YOU ARE ADVISED THAT THIS OFFICE WOULD NOT QUESTION AN OTHERWISE PROPER AWARD TO THE LOW BIDDER ON THE BASIS OF THE ORIGINAL INVITATION FOR BIDS.

THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE ATLANTIC MANUFACTURING COMPANY CONCERNING ITS PROTEST AGAINST THE CONSIDERATION OF THE BID SUBMITTED BY ATLANTIC EQUIPMENT COMPANY, INC. ..END :