B-149289, SEP. 21, 1962

B-149289, SEP. 21, 1962

TO NORAIR ENGINEERING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1962, PROTESTING THE REJECTION OF ALL BIDS ON INVITATION FOR BIDS NO. GS-R3 B-13004, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FOR ALTERATIONS AND ADDITIONS TO THE MUSEUM OF NATURAL HISTORY, SMITHSONIAN INSTITUTION, WASHINGTON, D.C.

IT IS ADMINISTRATIVELY REPORTED THAT, SUBSEQUENT TO THE PREPARATION OF PLANS AND A COST ESTIMATE OF $6,449,000 COVERING CONSTRUCTION WORK REQUIRED PRIMARILY ON THE WEST WING OF THE MUSEUM AND THE BUDGETING OF THAT AMOUNT FOR THIS PURPOSE, OFFICIALS OF THE SMITHSONIAN INSTITUTION REQUESTED THAT THE INVITATION FOR BIDS INCLUDE CERTAIN ADDITIONAL WORK ON THE ORIGINAL MAIN BUILDING AND SEPARATE, INSTEAD OF THE PROPOSED COMBINED, STORM AND SANITARY SEWER SYSTEMS. AS A RESULT OF THESE UNANTICIPATED REQUIREMENTS, IN THE PREPARATION OF COVERING DRAWINGS AND SPECIFICATIONS THE WORK WAS SHARPLY CUT BACK FROM THAT ORIGINALLY PLANNED IN ORDER TO BETTER ASSURE THE RECEIPT OF BIDS WITHIN THE LIMIT OF AVAILABLE FUNDS. IS FURTHER REPORTED THAT, UPON THE OPENING OF THE FIFTEEN BIDS RECEIVED IN RESPONSE TO THE INVITATION, IT WAS FOUND THAT YOUR LOW BID OF $5,339,000 WAS $1,050,000 UNDER THE ESTIMATED COST OF CONSTRUCTION AND THE AVERAGE OF $5,603,600 FOR THE FIVE LOWEST BIDS WAS $845,400 UNDER THE ESTIMATE. THE RESULTS OF THE BIDDING SHOWED THAT, CONTRARY TO EXPECTATIONS, THE FUNDS AVAILABLE MIGHT BE SUFFICIENT TO COVER THE ORIGINAL PLANS AND REQUIREMENTS OF THE GOVERNMENT AND ALSO CERTAIN ADDITIONAL WORK IN THE ORIGINAL STRUCTURE DESIRABLE FOR EFFICIENT AND SAFE OPERATION OF THE BUILDING. BASED ON THE FACT THAT THIS WORK, OMITTED FROM THE CURRENT INVITATION, COULD BE INSTALLED IN A MORE SATISFACTORY MANNER AND AT MATERIALLY LESS COST THAN IF INSTALLED AT A LATER DATE, IT WAS ADMINISTRATIVELY DETERMINED THAT IT WAS IN THE PUBLIC INTEREST TO REJECT ALL BIDS AND READVERTISE ON THE BASIS OF SPECIFICATIONS REVISED TO ENLARGE THE SCOPE AND QUALITY OF THE WORK. ACCORDINGLY, BY LETTERS DATED JUNE 14, 1962, BIDDERS WERE ADVISED BY THE CONTRACTING OFFICER THAT, IN ACCORDANCE WITH THE RIGHTS RESERVED IN PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS, ALL BIDS RECEIVED AT THE BID OPENING ON JUNE 5, 1962, WERE REJECTED, AND THAT IT WAS INTENDED TO REVISE THE SPECIFICATIONS AND READVERTISE THE REQUIRED WORK AT A LATER DATE.

SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 253, PROVIDES THAT ALL BIDS RECEIVED IN RESPONSE TO AN INVITATION MAY BE REJECTED UPON DETERMINATION THAT SUCH ACTION IS IN THE PUBLIC INTEREST. TO THE SAME EFFECT, AS REFERRED TO BY THE CONTRACTING OFFICER IN THE NOTICE OF REJECTION OF BIDS, PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS, WHICH ACCOMPANIED THE INVITATION FOR BIDS, SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS WHEN SUCH REJECTION IS IN THE INTEREST OF THE GOVERNMENT.

IN VIEW OF THE ABOVE STATUTORY AUTHORITY AND THE EXPRESS RESERVATION IN THE INVITATION FOR BIDS, THERE DOES NOT APPEAR ANY SOUND BASIS FOR YOUR VIEW THAT THE GENERAL SERVICES ADMINISTRATION COULD NOT UNDER THE CIRCUMSTANCES REJECT ALL BIDS RECEIVED UNDER THE INVITATION, BUT WAS BOUND TO AWARD THE CONTRACT TO YOU AS "THE BONAFIDE LOW BIDDER.' WE RECOGNIZE, OF COURSE, THAT THE REJECTION OF BIDS AFTER OPENING IS A SERIOUS MATTER AND CONCUR IN YOUR EXPRESSED VIEW THAT SUCH ACTION SHOULD NOT BE TAKEN FOR ARBITRARY REASONS. HOWEVER, WE FIND NOTHING IN THE RECORD TO SUPPORT THE CONCLUSION THAT THE REJECTION OF ALL BIDS WAS FOR SUCH REASONS OR THAT SUCH ACTION, AS FURTHER CONTENDED BY YOU, WAS DUE TO CONGRESSIONAL INTERFERENCE. TO THE CONTRARY, THE RECORD REASONABLY SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT THE PUBLIC INTEREST WOULD BE SERVED BY THE REJECTION OF ALL BIDS AND THAT READVERTISEMENT ON THE BASIS OF SPECIFICATIONS MORE ADEQUATELY COVERING THE NEEDS OF THE GOVERNMENT WOULD RESULT IN A CONTRACT MORE ADVANTAGEOUS TO THE GOVERNMENT.

ACCORDINGLY, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, WE PERCEIVE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.