B-135466, MAY 14, 1958, 37 COMP. GEN. 757

B-135466, MAY 14, 1958, 37 COMP. GEN. 757

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INVITATION CANCELLATION PRIOR TO FORMAL BID REJECTION A BID FOR THE CONSTRUCTION OF MILITARY HOUSING UNITS WHICH PROVIDES ONLY APPROXIMATELY 30 PERCENT OR LESS OF THE STORAGE SPACE REQUIRED BY THE SPECIFICATIONS AND FOR A TYPE OF PLYWOOD SIDING NOT SPECIFICALLY RELATED TO THE REQUIREMENTS IS A QUALIFIED BID CONTAINING DEVIATIONS WHICH GO TO THE QUALITY OF THE STRUCTURES AND CANNOT BE WAIVED BY THE CONTRACTING OFFICER, AND NEITHER A NOTE APPENDED TO THE BID IN WHICH THE BIDDER OFFERS TO MAKE ANY REASONABLE CHANGES NOR A LETTER RECEIVED AFTER OPENING IN WHICH THE BIDDER OFFERED SIDING MEETING THE SPECIFICATIONS MAY PROPERLY BE CONSIDERED. THE CANCELLATION OF AN INVITATION AFTER THE ONLY TWO BIDS RECEIVED WERE EVALUATED AND FOUND TO BE NONRESPONSIVE CONSTITUTES AN AUTOMATIC REJECTION OF ALL BIDS, AND THE FACT THAT THE INVITATION WAS CANCELED PRIOR TO FORMAL NOTIFICATION TO THE BIDDERS OF THE BASIS FOR REJECTION DOES NOT MAKE THE CANCELLATION IMPROPER.

TO LORD-CARROLL AND GREEN, MAY 14, 1958:

FURTHER REFERENCE IS MADE TO YOUR PROTEST IN CONNECTION WITH YOUR BID FOR THE CONSTRUCTION OF 27 HOUSING UNITS AT MT. HEBO AIR FORCE STATION, WHICH WAS SUBMITTED IN RESPONSE TO INVITATION NO. 35-608-58-9, ISSUED BY THE 337TH FIGHTER GROUP, PORTLAND, OREGON. CONSIDERATION HAS BEEN GIVEN TO COPIES OF CORRESPONDENCE RELATING TO THE PROTEST RECEIVED FROM SENATOR WAYNE MORSE, AS WELL AS TO A COMMUNICATION FROM CONGRESSMAN WALTER NORBLAD.

BY THE INVITATION REFERRED TO BIDS WERE REQUESTED--- TO BE OPENED DECEMBER 10, 1957--- FOR FURNISHING ALL LABOR, EQUIPMENT AND MATERIALS FOR THE CONSTRUCTION OF 27 FAMILY HOUSING UNITS AT MT. HEBO AIR FORCE STATION, MT. HEBO, OREGON, IN ACCORDANCE WITH PLANS AND DRAWINGS TO BE SUBMITTED BY THE BIDDERS IN CONFORMITY TO DESIGNATED SPECIFICATIONS AND DRAWINGS INCLUDED WITH THE INVITATION.

PARAGRAPH 3-05 OF THE TECHNICAL PROVISIONS REQUIRED THAT THE HOUSING UNITS PROVIDE FOR GENERAL STORAGE SPACE IN THE AMOUNT OF 300 CUBIC FEET PLUS 50 CUBIC FEET FOR EACH BEDROOM. IT IS REPORTED THAT THE FLOOR PLANS FURNISHED WITH YOUR BID PROVIDED FOR LESS THAN 100 CUBIC FEET OF STORAGE SPACE FOR OFFICERS' FOUR-BEDROOM HOUSES, WHEREAS THE ABOVE PROVISIONS CALLED FOR A MINIMUM OF 500 CUBIC FEET. REGARDING THE OFFICERS' THREE- BEDROOM UNITS AND THE AIRMEN'S THREE-BEDROOM UNITS, YOUR DRAWINGS INDICATED 132 AND 142 CUBIC FEET, RESPECTIVELY, INSTEAD OF THE MINIMUM 450 CUBIC FEET REQUIRED. THE SPECIFICATIONS PROVIDED FURTHER (TECHNICAL PROVISIONS, PARAGRAPH 3-12) THAT THE EXTERIOR WALL FINISH OF THE HOUSES BE OF RED CEDAR, WHITE PINE, PONDEROSA PINE OR SUGAR PINE, WITH THE PROVISION FOR THE USE OF EXTERIOR GRADE PLYWOOD "IN SMALL PANELS PURELY FOR ARCHITECTURAL EFFECT.' YOUR BID INDICATED THAT YOU PROPOSED TO USE--- AS EXTERIOR SIDING MATERIAL--- PLYWOOD,"OR ALTERNATE.' SUBSEQUENT TO THE OPENING OF YOUR BIDS YOU REPORTEDLY ADDRESSED A LETTER TO THE PROCURING AGENCY OFFERING TO INSTALL, AT NO ADDITIONAL COST TO THE GOVERNMENT, BEVELED CEDAR SIDING TO ACCORD WITH THE SPECIFICATIONS AS WELL AS TO "MOVE PARTITIONS AS MUTUALLY AGREED TO GIVE MOST DESIRABLE, USABLE FLOOR SPACE.'

UPON DISCLOSURE OF THE ABOVE DEFICIENCIES IN YOUR BID, AND FINDING THAT THE ONLY OTHER BID WAS SO QUALIFIED AS NOT TO BE ACCEPTABLE, THE CONTRACTING OFFICER NOTIFIED BOTH BIDDERS THAT THE INVITATION WAS CANCELED.

IN REGISTERING YOUR PROTEST YOU STATE THAT YOUR BID WAS RESPONSIVE IN THAT YOUR DESIGN WAS WITHIN ALL DESIGN CRITERIA, BID REQUIREMENTS AND FUND LIMITATIONS AND YOU CONTEND THAT THE NOTE PLACED ON YOUR PLANS, WHEREBY YOU AGREED TO MAKE ANY REASONABLE CHANGES IN PLANS AND SPECIFICATIONS, OVERCOMES THE OBJECTION AS TO PLYWOOD SIDING WHICH YOU SPECIFIED AND WHICH WAS CONSIDERED BY THE CONTRACTING AGENCY AS ONE OF THE BASES FOR REJECTING YOUR BID.

BASED UPON ALL THE ATTENDANT FACTORS MENTIONED ABOVE, IT IS OUR VIEW THAT YOUR BID PROPERLY WAS CONSIDERED BY THE CONTRACTING AGENCY AS BEING NONRESPONSIVE. THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS. 34 COMP. GEN. 82. IN THE PRESENT CASE, YOUR PROPOSAL TO PROVIDE ONLY APPROXIMATELY 30 PERCENT OR LESS OF THE REQUIRED AMOUNT OF STORAGE SPACE IN THE HOUSING UNITS AND TO FURNISH PLYWOOD NOT SPECIFICALLY RELATED TO THE REQUIREMENTS OF THE SPECIFICATIONS CONSTITUTED MATERIAL DEVIATIONS WHICH WENT TO THE QUALITY OF THE STRUCTURES TO BE PROVIDED AND, AS SUCH, COULD NOT BE WAIVED BY THE CONTRACTING OFFICER. COMP. GEN. 179; 33 ID. 441. REGARDING THE SUBSTANTIAL DEFICIENCY IN STORAGE SPACE WHICH YOU PROPOSED TO FURNISH, AND HAVING REFERENCE TO YOUR NOTE ABOVE MENTIONED, THE SECRETARY OF THE AIR FORCE, IN HIS REPORT ON THE MATTER OF YOUR PROTEST, MAKES THE FOLLOWING STATEMENTS WITH WHICH WE ARE FULLY IN ACCORD:

* * * THE EXPRESSION "REASONABLE" MIGHT RESERVE TO THE BIDDER THE OPTION OF DETERMINING WHETHER A PROPOSAL BY THE GOVERNMENT TO REMEDY THE DEFECT WAS ACCEPTABLE. FURTHERMORE, IT WOULD APPEAR THAT SUBSTITUTING GENERAL WORDS OF PROMISE FOR DETAILED PLANS, MEETING THE SPECIFICATIONS, WOULD BE AT VARIANCE WITH ARTICLE 18 OF THE ADDITIONAL INSTRUCTIONS TO BIDDERS. THE EXTENT THAT REDESIGN OF THE FLOOR PLAN WOULD BE NECESSARY TO RECTIFY THE LARGE DEFICIENCY IN FLOOR SPACE, THE GOVERNMENT WOULD BE DEPRIVED OF THE OPPORTUNITY OF EFFECTIVELY EVALUATING THE DETAILED PLANS REQUIRED OF THE BIDDERS.

WITH REFERENCE TO YOUR LETTER IN WHICH YOU OFFERED TO FURNISH BEVELED CEDAR SIDING IN ACCORDANCE WITH THE SPECIFICATIONS, SUCH OFFER, HAVING BEEN RECEIVED AFTER THE OPENING OF BIDS, CANNOT PROPERLY BE GIVEN ANY CONSIDERATION. IN NUMEROUS DECISIONS OUR OFFICE HAS HELD THAT TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. IN SUPPORT OF THIS POSITION, ATTENTION IS INVITED TO THE CASE OF CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056, WHEREIN THE COURT STATED AS FOLLOWS:

* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.

IN THE INSTANCE CASE YOUR BID AND THAT OF THE FRED J. EARLY, JR., COMPANY WERE REJECTED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION, PURSUANT TO APPLICABLE PROCUREMENT INSTRUCTIONS, THAT THEY WERE NONRESPONSIVE. BONA FIDE DETERMINATIONS AS TO RESPONSIVENESS OF BIDS AND RESPONSIBILITY OF BIDDERS ARE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND MAY BE QUESTIONED ONLY WHERE THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. FIND NO LACK OF SUCH EVIDENCE IN THIS INSTANCE.

WITH RESPECT TO YOUR APPARENT CONTENTION THAT CANCELLATION OF THE INVITATION WAS IMPROPER UNTIL BIDS HAD BEEN FORMALLY REJECTED, AND THAT THE GROUNDS NOW STATED AS JUSTIFICATION FOR REJECTION OF YOUR BID WERE BELATEDLY ADVANCED TO SUPPORT THE EFFORT OF THE AIR FORCE TO "CHANGE HORSES," THE RECORD SHOWS THAT THE DEFECTS IN YOUR BID WERE DETERMINED BY THE EVALUATING OFFICERS ON DECEMBER 20, 1957, AND THAT THE CANCELLATION OF THE INVITATION WAS BASED UPON THE FINDING THAT THERE WAS NO RESPONSIVE AND ACCEPTABLE BID AVAILABLE. SINCE SUCH CANCELLATION IS AUTOMATICALLY A REJECTION OF ALL BIDS, THE ISSUANCE OF A FORMAL REJECTION TO EACH BIDDER WOULD OBVIOUSLY BE A USELESS GESTURE.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING THE TWO BIDS AND CANCELING THE INVITATION WAS ILLEGAL OR IMPROPER.