B-126949, MAR. 19, 1956

B-126949, MAR. 19, 1956

TO WILLIAM D. BRIGHT ENTERPRISES:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD BY THE DEPARTMENT OF THE AIR FORCE AT THE OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH, OF A CONTRACT FOR FURNISHING AERIAL TOW TARGETS TO THE AMERICAN TENT COMPANY PURSUANT TO IFB-42-600-56-55, ISSUED SEPTEMBER 14, 1955.

IT WAS STATED IN YOUR TELEGRAM OF FEBRUARY 9, 1956, THAT ALTHOUGH YOU WERE LOW BIDDER BY $40,000, THE OGDEN AIR MATERIEL AREA PERMITTED A LATE BIDDER TO BE QUALIFIED. YOU REQUESTED THAT THE ENTIRE LOT OF BIDS RECEIVED BE REVIEWED AND THAT ALL BIDS WHICH ARRIVED AFTER THE OPENING DATE BE EXCLUDED. YOU REFERRED IN YOUR TELEGRAM TO YOUR LETTER OF JANUARY 3, 1956, TO THE CONTRACTING OFFICER WHICH SETS FORTH AT LENGTH THE BASES FOR YOUR PROTEST. IN THAT LETTER YOU STATED, AMONG OTHER THINGS, THAT PURSUANT TO THE REQUEST OF A GOVERNMENT BUYER YOU FURNISHED AN AFFIDAVIT, TOGETHER WITH COPIES OF THE AMENDMENTS, THE AFFIDAVIT STATING THAT THE AMENDMENTS WERE MAILED AS REQUIRED.

THE INVITATION CALLED FOR BIDS TO BE RECEIVED UNTIL 2:00 P.M., MOUNTAIN TIME OCTOBER 14, 1955, AND THEN PUBLICLY OPENED. BY AMENDMENT NO. 1 ISSUED SEPTEMBER 30, 1955, THE PROVISION IN THE INVITATION SPECIFYING A QUANTITY OF 16,000 WAS CHANGED TO REQUIRE ALTERNATE BIDS ON QUANTITIES OF 5,000 AND 10,000. ALSO, THE AMENDMENT MADE SOME CHANGES IN THE METHOD OF DELIVERY AND EXTENDED THE DATE ORIGINALLY SET FOR THE OPENING OF BIDS TO OCTOBER 28, 1955. AMENDMENTS NOS. 2, 3, AND 4 ISSUED OCTOBER 18, AND 21, AND NOVEMBER 1, 1955, RESPECTIVELY, CHANGED THE SAMPLING REQUIREMENTS OF THE INVITATION AND MADE A NUMBER OF CHANGES AND CLARIFICATIONS IN THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. THESE AMENDMENTS CLARIFIED CERTAIN APPARENT INCONSISTENCIES BETWEEN SOME PROVISIONS IN THE SPECIFICATIONS AND THE DRAWINGS ATTACHED TO THE INVITATION FOR BIDS AND AMENDMENT NO. 3 EXTENDED THE OPENING DATE TO NOVEMBER 14, 1955.

THE RECORD SHOWS THAT 26 BIDS WERE RECEIVED AND THAT THEY WERE OPENED AS SCHEDULED ON NOVEMBER 14, 1955. YOU SUBMITTED THE LOWEST BID IN THE AMOUNT OF $700,000 ON THE QUANTITY OF 5,000, WHICH WAS SELECTED AS THE QUANTITY TO BE PROCURED. THE NEXT LOW BID ON THAT QUANTITY WAS THAT OF THE AMERICAN TENT COMPANY OF CANTON, MISSISSIPPI, IN THE AMOUNT OF $709,150, OR $9,150 HIGHER THAN YOUR BID INSTEAD OF $40,000 AS CLAIMED BY YOU. THE CONTRACTING OFFICER REPORTS THAT YOUR BID WAS OPENED ALONG WITH THE OTHERS IN THE PRESENCE OF AIR FORCE PERSONNEL AND REPRESENTATIVES OF MANY OF THE BIDDERS AND THAT IT WAS FOUND THAT YOU DID NOT ENCLOSE THE AMENDMENTS TO THE INVITATION AS REQUIRED. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE RECORDS DO NOT SHOW THAT THE AMENDMENTS WERE RETURNED BY YOU EITHER BEFORE OR AFTER THE OPENING DATE AND THAT THERE IS NOTHING TO INDICATE THAT YOU CONSIDERED THE AMENDMENTS WHEN YOU PREPARED YOUR BID.

SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23, PROVIDES THAT AWARDS OF CONTRACTS SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE PRESENT MATTER THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE WHEN SIGNED COPIES OF THE AMENDMENTS WERE NOT RECEIVED. WHILE THE GOVERNMENT RESERVED THE RIGHT IN THE INVITATION FOR BIDS TO WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN BIDS RECEIVED, THE INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE. ALSO, THE RULE IS THAT ONLY THOSE DEVIATIONS MAY BE WAIVED WHICH DO NOT GO TO THE SUBSTANCE OF THE BID AND WHICH DO NOT WORK AN INJUSTICE TO OTHER BIDDERS. AT LEAST SOME OF THE AMENDMENTS CONTAIN SUBSTANTIAL ALTERATIONS OF THE TERMS OF THE ORIGINAL INVITATION WHICH OBVIOUSLY AFFECTED THE PRICE AND QUANTITY OF THE EQUIPMENT.

IT IS CLEAR THAT YOUR BID COULD NOT BE CONSIDERED FOR ACCEPTANCE WHEN IT WAS OPENED AND THE AMENDMENTS HAD NOT BEEN ENCLOSED OR RETURNED. MOREOVER, TO PERMIT YOU TO EXPLAIN YOUR BID AFTER OPENING BY AFFIDAVITS OR OTHER EVIDENCE WOULD, IN EFFECT, GIVE YOU AN ADVANTAGE NOT ALLOWED OTHER BIDDERS WHO HAD RETURNED THE AMENDMENTS ON TIME AND WOULD HAVE PUT YOU IN A POSITION WHERE YOU COULD, AFTER OPENING OF BIDS, MAKE AN ELECTION AS TO WHETHER OR NOT YOU WISHED TO HAVE YOUR BID CONSIDERED. AS POINTED OUT IN 17 COMP. GEN. 554, THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN INDIVIDUAL CASES BY PERMITTING PRACTICES AND PROCEDURES WHICH DO VIOLENCE TO THE SPIRIT AND PURPOSE OF THE LAW.

WITH RESPECT TO YOUR STATEMENT THAT THE CONTRACT WAS AWARDED TO A BIDDER WHOSE BID WAS RECEIVED LATE, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE BID OF THE SUCCESSFUL BIDDER WAS ACTUALLY RECEIVED AT THE BASE PRIOR TO THE TIME SET FOR OPENING OF BIDS BUT, THROUGH SOME DELAY IN THE RECEIVING OFFICE, WAS NOT CARRIED TO THE PLACE OF OPENING OF BIDS IN TIME FOR THE OPENING. THE BID WAS RECEIVED BY THE GOVERNMENT PRIOR TO THE TIME SCHEDULED FOR OPENING AND WAS IN THE GOVERNMENT'S POSSESSION AT ALL TIMES AFTER ITS RECEIPT. UNDER SUCH CIRCUMSTANCES, WE CANNOT SAY ..END :