B-126817, MAR. 23, 1956

B-126817, MAR. 23, 1956

TO GEOFFREY CREYKE, JR., ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1956, IN BEHALF OF VINNELL COMPANY, WHEREIN YOU TAKE EXCEPTION TO THAT PORTION OF OUR LETTER OF FEBRUARY 28, 1956, TO THE SECRETARY OF COMMERCE WHEREIN WE ADVISE THAT IN VIEW OF THE GREAT DIFFERENCE BETWEEN THE CORRECTED BID PRICE REQUESTED BY NELLO L. TEER COMPANY AND THE BID SUBMITTED BY VINNELL COMPANY, THE INTEREST OF THE GOVERNMENT WOULD APPEAR TO REQUIRE REJECTION OF BOTH BIDS RECEIVED BY THE BUREAU OF PUBLIC ROADS FOR RAMA ROAD PROJECT R-3A, AND READVERTISEMENT FOR NEW BIDS. YOU STATE THAT SUCH ACTION WILL IN EFFECT PERMIT SECOND GUESSING BY THE NELLO L. TEER COMPANY, WILL NOT RESULT IN A MONETARY SAVING TO THE GOVERNMENT, AND WILL OVERLOOK THE RIGHTS OF VINNELL COMPANY AS LOW BIDDER UNDER THE ORIGINAL INVITATION.

PARAGRAPH 12 OF THE INVITATION FOR BIDS ON RAMA ROAD PROJECT R-3A RESTATES THE PROVISION OF SECTION 303 OF THE ACT OF JUNE 30, 1949, 63 STAT. 395, WHICH RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL BIDS WHEN SUCH REJECTION IS IN THE INTEREST OF THE GOVERNMENT. THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS HAVE HELD REPEATEDLY THAT, IRRESPECTIVE OF ANY SUCH RESERVATION, A REQUEST FOR BIDS DOES NOT IMPOSE AN OBLIGATION ON THE UNITED STATES TO ACCEPT ANY OF THE OFFERS RECEIVED, INCLUDING THE LOWEST CORRECT BID. O-BRIEN V. CARNEY, 6 F.SUPP. 761; SCOTT V. UNITED STATES, 44 C.CLS. 524; COLORADO PAVING CO. V. MURPHY, 78 F. 28. UNDER A SIMILAR PROVISION IN AN INVITATION, A FORMER COMPTROLLER GENERAL OF THE UNITED STATES EXPRESSED HIS OPINION AT 17 COMP. GEN. 554, 559-560, ON THE DUTIES IMPOSED UPON ADMINISTRATIVE OFFICIALS BY THE COMPETITIVE BIDDING STATUTES AS FOLLOWS:

"* * * NOT ONLY DID THE INVITATION FOR BIDS EXPRESSLY STATE A RESERVATION OF THE RIGHT TO REJECT ANY AND ALL PROPOSALS, BUT A REQUEST FOR BIDS OR OFFERS, IRRESPECTIVE OF ANY SUCH RESERVATION, DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, AND CERTAINLY IT CANNOT BE CONCEDED THAT A PUBLIC OFFICER, ACTING FOR THE GENERAL WELFARE, IS BOUND TO ACCEPT A BID, WHERE HE DETERMINES THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND READVERTISEMENT OF THE CONTRACT ON SPECIFICATIONS STATED TO REFLECT MORE ACCURATELY THE ACTUAL NEEDS TO BE MET, OR, FOR THAT MATTER, THAT DUE TO THE LAPSE OF TIME OR OTHERWISE A MORE ADVANTAGEOUS CONTRACT MIGHT BE OBTAINED.'

WHILE IT IS TRUE, AS YOU HAVE SUGGESTED, THAT MONETARY BENEFITS WHICH MAY BE EXPECTED TO ACCRUE AS A RESULT OF READVERTISING MUST BE BALANCED AGAINST TIME LOSS AND COST OF READVERTISING, THE EVALUATION OF THESE AND OTHER FACTORS, OF WHICH ONLY THE ADMINISTRATIVE OFFICIALS CHARGED WITH SUPERVISION OF THE WORK TO BE PERFORMED HAVE FULL AND COMPLETE KNOWLEDGE, IS PRIMARILY THE RESPONSIBILITY OF SUCH OFFICIALS. WE HAVE BEEN ADVISED INFORMALLY BY THE ADMINISTRATIVE OFFICE THAT THE BIDS HAVE BEEN FORMALLY REJECTED AND NEW ADVERTISING COMMENCED, AND IN THESE CIRCUMSTANCES IT APPEARS THAT FURTHER CONSIDERATION OF OUR PRIOR ACTION WOULD BE USELESS.