B-132171, JUN. 27, 1957

B-132171, JUN. 27, 1957

TO GRANIK AND MARSHALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1957, WITH ENCLOSURES, PROTESTING ON BEHALF OF THE GENERAL BRONZE CORPORATION THE REJECTION OF ALL BIDS SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 241-57 ISSUED BY THE NATIONAL BUREAU OF STANDARDS AND THE READVERTISEMENT OF THE SAME PROCUREMENT UNDER AN INVITATION FOR BIDS NO. 326-57.

THE REPORT ON THE MATTER FROM THE DEPARTMENT OF COMMERCE TRANSMITTED BY LETTER OF JUNE 24, 1957, STATES THAT BIDS SUBMITTED PURSUANT TO THE FIRST INVITATION FOR THREE 60-FOOT PARABOLOIDAL ANTENNA SYSTEMS WERE OPENED ON APRIL 5, 1957. FOUR BIDS WERE SUBMITTED. THE LOW BID OF $429,950 WAS SUBMITTED BY THE BERNER-STAFFORD ENGINEERING COMPANY; THE SECOND LOW BID WHICH WAS SUBMITTED BY THE GENERAL BRONZE CORPORATION WAS $477,195, OR $47,245 HIGHER. THE SECRETARY OF LABOR, HOWEVER, DETERMINED THAT THE LOW BIDDER WAS NOT A REGULAR MANUFACTURER OR DEALER UNDER THE WALSH-HEALEY ACT AND, THEREFORE, WAS NOT COMPETENT TO RECEIVE THE AWARD. THE ADMINISTRATIVE REPORT CONTINUES THAT IN VIEW OF THE LIKELIHOOD THAT THE MANUFACTURE WHICH WAS TO HAVE BEEN USED BY HERNER-STAFFORD AS A SUBCONTRACTOR WOULD SUBMIT A BID FOR THE PROCUREMENT UNDER A NEW INVITATION AND IN VIEW OF THE PROBABLE SAVINGS WHICH WOULD THEREBY INURE TO THE GOVERNMENT IT WAS DETERMINED THAT THE PROCUREMENT SHOULD BE READVERTISED. YOU CONTEND THAT THE GENERAL BRONZE CORPORATION BID UNDER THE FIRST INVITATION WAS COMPLETELY RESPONSIVE, THAT THE SPECIFICATIONS UNDER THE SECOND INVITATION ARE NOT SIGNIFICANTLY DIFFERENT FROM THOSE APPLICABLE TO THE FIRST AND, THEREFORE, THAT NO VALID BASIS EXISTS FOR THE REJECTION OF THE GENERAL BRONZE BID UNDER THE FIRST INVITATION.

IT IS CONCEDED THAT THE REJECTION OF BIDS WHICH ARE FULLY RESPONSIVE AND THE READVERTISEMENT OF THE PROCUREMENT MUST BE DISCOURAGING TO BIDDERS WHO OFFER FULL COMPLIANCE WITH THE SPECIFICATIONS, AND EVENTUALLY RESULT IN REDUCING THE NUMBER OF COMPETITIVE BIDS, TO THE DISADVANTAGE OF THE GOVERNMENT. SEE B 118072, DECEMBER 18, 1953. HOWEVER, A PUBLIC OFFICER ACTING FOR THE PUBLIC WELFARE IS NOT BOUND TO ACCEPT A BID WHERE HE DETERMINES, ON THE BASIS OF FACTS REASONABLY TENDING TO SUPPORT HIS CONCLUSION, THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND THAT READVERTISEMENT OF THE CONTRACT MIGHT RESULT IN A MORE ADVANTAGEOUS CONTRACT TO THE GOVERNMENT. 17 COMP. GEN. 554, 36 COMP. GEN. 364.

IN THIS INSTANCE THERE APPEARS TO BE AN ADDITIONAL AND POSSIBLY STRONGER REASON FOR REJECTING ALL BIDS UNDER THE FIRST INVITATION AND READVERTISING. THE EARLIER INVITATION FOR BIDS, NO. 241-57, PROVIDES AT PARAGRAPH IIIB ON PAGE 9, IN PART, THAT "BIDDERS SHALL BE REGULARLY ENGAGED IN THE DESIGN AND CONSTRUCTION OF ANTENNAS, INCLUDING EXPERIENCE WITH PARABOLOIDAL ANTENNAS OF THE SIZE SPECIFIED HEREIN.' WHERE THE REQUIRED QUALITY OF PERFORMANCE CAN BEST BE ASSURED BY MAKING AN AWARD TO A CONTRACTOR WITH A PARTICULAR EXPERIENCE IN A SPECIFIED AREA WE HAVE HELD THAT SUCH STANDARD OF EXPERIENCE MAY BE REQUIRED BY THE TERMS OF THE INVITATION AS A PREREQUISITE TO AWARD. 20 COMP. GEN. 862, 865. SEE ALSO 35 COMP. GEN. 161 AND 26 COMP. GEN. 676. ONE OF THE PURPOSES OF STATUTES GOVERNING PUBLIC PROCUREMENT IS TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED COMPETITION. SEE UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461. THE SPECIALIZED EXPERIENCE REQUIREMENT CONTAINED IN PARAGRAPH IIIB OF THE FIRST INVITATION OBVIOUSLY TENDS TO RESTRICT COMPETITION PARTICULARLY WHERE, AS WE HAVE BEEN INFORMALLY ADVISED IS TRUE IN THIS CASE, ONLY ONE BIDDER MEETS THE EXPERIENCE REQUIREMENT. IN THE SECOND INVITATION, NO. 362-57, THE SPECIALIZED EXPERIENCE REQUIREMENT HAS BEEN ELIMINATED AND THE PROVISION CHANGED TO READ "BIDDERS SHALL HAVE HAD EXPERIENCE IN THE DESIGN AND CONSTRUCTION OF ANTENNAS, AND SHALL HAVE AVAILABLE THE NECESSARY PLANT FACILITIES AND PERSONNEL TO SUCCESSFULLY PERFORM UNDER ANY CONTRACT AWARDED FROM THIS INVITATION IN THE MANNER AND WITHIN THE TIME SPECIFIED.'

IT IS CLEAR FROM THE CHANGE THAT THE SPECIALIZED EXPERIENCE REQUIREMENT CONTAINED IN THE FIRST INVITATION WAS NOT CONSIDERED NECESSARY. UPON SUCH DETERMINATION THE FIRST INVITATION WAS PROPERLY WITHDRAWN AND THE PROCUREMENT READVERTISED ON A LESS RESTRICTIVE BASIS IN ORDER TO SECURE FOR THE GOVERNMENT THE BENEFITS FLOWING FROM FREE AND UNRESTRICTED COMPETITION AS INTENDED BY THE PROCUREMENT STATUTES. WE HAVE BEEN INFORMALLY ADVISED THAT THE NUMBER OF BIDDERS UNDER THE SECOND INVITATION IS SIGNIFICANTLY LARGER THAN THE NUMBER SUBMITTING BIDS UNDER THE FIRST INVITATION. THIS WOULD TEND TO INDICATE THAT THE ELIMINATION OF THE PARTICULAR EXPERIENCE REQUIREMENT HAS IN FACT INCREASED COMPETITION.

IN ACCORDANCE WITH THE FOREGOING THERE IS PERCEIVED NO LEGAL BASIS UPON WHICH WE WOULD VALIDLY OBJECT TO THE REJECTION OF ALL BIDS UNDER THE FIRST INVITATION.