B-154759, DEC. 21, 1964

B-154759, DEC. 21, 1964

TO FLINCHBAUGH PRODUCTS, INC.:

YOUR LETTER OF NOVEMBER 24, 1964, REQUESTS THAT WE REVIEW OUR DECISION OF NOVEMBER 16, 1964, WHICH DENIED YOUR PROTEST AGAINST THE REJECTION BY THE DEPARTMENT OF THE ARMY OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. AMC/A/-11-173-64-117.

BRIEFLY, THE BASIS FOR THE BID REJECTION WAS YOUR FAILURE TO FULFILL THE REQUIREMENT OF THE IFB THAT WRITTEN AUTHORIZATION BE OBTAINED PRIOR TO BID OPENING FOR THE USE OF ANY GOVERNMENT PROPERTY PROPOSED TO BE USED IN THE PERFORMANCE OF THE WORK BID UPON. IN OUR DECISION WE STATED THAT SUCH REQUIREMENT WAS MATERIAL SINCE THE USE OF GOVERNMENT PROPERTY IN THE PERFORMANCE OF A CONTRACT MAY MATERIALLY AFFECT THE CONTRACT PRICE. THEREFORE, THE REQUIREMENT COULD NOT BE WAIVED AS A MERE INFORMALITY. ACCORDINGLY, WE FOUND NO BASIS TO QUESTION THE ACTION OF THE PROCUREMENT AGENCY.

IN YOUR LETTER OF NOVEMBER 24, YOU STRESS THE FACT THAT YOU MADE A REQUEST BEFORE BID OPENING BY LETTER DATED JUNE 12, 1964, FOR PERMISSION TO USE THE GOVERNMENT PROPERTY LISTED IN YOUR BID AND THAT SUCH LETTER HAS NEVER BEEN ANSWERED. THEREFORE, YOU CONTEND, YOU ARE BEING HELD LIABLE ,FOR THE FAILURE OF GOVERNMENT PERSONNEL TO CARRY OUT THEIR RESPONSIBILITY EXPEDITIOUSLY AND PARTICULARLY IN VIEW OF THE URGENCY OF THE THEN IMPENDING BID OPENING DATE.' IN ADDITION, YOU CALL ATTENTION TO A SAVING OF SOME $29,000 TO THE GOVERNMENT WERE YOUR LOW BID ACCEPTED. FINALLY, YOU CONTEND THAT, SINCE THE GOVERNMENT OWNED EQUIPMENT IS ALREADY IN YOUR PLANT AND SINCE NO MANUFACTURER MAY OBTAIN AUTHORIZATION TO USE SUCH EQUIPMENT, THE WRITTEN AUTHORIZATION REQUIREMENT IS ERRONEOUS AND SUPERFLUOUS.

WHILE IT IS REGRETTABLE THAT THE FACILITIES CONTRACTING OFFICER FAILED TO REPLY BEFORE BID OPENING TO YOUR WRITTEN REQUEST OF JUNE 12, SUCH FACT DID NOT RELIEVE YOU OF THE RESPONSIBILITY WHICH IS PLACED UPON ALL BIDDERS TO PREPARE THEIR BIDS IN ACCORDANCE WITH THE TERMS OF THE ADVERTISED INVITATION AS PROVIDED BY 10 U.S.C. 2305. THEREFORE, IT WAS INCUMBENT UPON YOU TO PURSUE YOUR GOVERNMENT PROPERTY USE AUTHORIZATION REQUEST BEFORE BID OPENING. FURTHERMORE, THE RULE IS WELL SETTLED THAT IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION, THE GOVERNMENT IS NOT RESPONSIBLE FOR THE MALFEASANCE, MISFEASANCE, NEGLIGENCE OR OMISSIONS OF DUTY OF ITS AGENTS OR EMPLOYEES. GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579; ROBERTSON V. SICHEL, 127 U.S. 507, 515; 22 COMP. GEN. 221; 19 ID. 503.

AS TO THE SAVING WHICH YOU CLAIM COULD BE REALIZED BY AWARD TO YOU, WE HAVE HELD THAT TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BID OPENING, WOULD SOON REDUCE TO A FARCE THE COMPETITIVE BIDDING SYSTEM. THE STRICT MAINTENANCE OF SUCH SYSTEM, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN ANY PECUNIARY ADVANTAGE WHICH MIGHT BE OBTAINED IN A PARTICULAR CASE BY A VIOLATION OF THE RULES OF COMPETITIVE BIDDING. 17 COMP. GEN. 554, 558. ACCORDINGLY, THE FACT THAT YOUR BID WAS LOWEST DOES NOT JUSTIFY ITS ACCEPTANCE IN CONTRAVENTION OF THE PROCUREMENT STATUTE AND REGULATIONS.

REGARDING YOUR STATEMENT THAT THE ADVANCE WRITTEN AUTHORIZATION REQUIREMENT IS ERRONEOUS AND SUPERFLUOUS BECAUSE NO OTHER MANUFACTURER MAY OBTAIN AUTHORIZATION TO USE THE GOVERNMENT-OWNED EQUIPMENT IN QUESTION, THE REQUIREMENT WAS INCLUDED IN THE IFB PURSUANT TO THE PROVISIONS OF PARAGRAPH C.2.D., "GUIDELINES FOR PROVISION, USE AND EVALUATION OF FACILITIES AND SPECIAL TOOLING" ISSUED BY HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND (AMC). THE "GUIDELINES" WERE PROMULGATED FOLLOWING A DEVIATION FROM PARAGRAPH 13-407 (A) (1) AND 13 502 OF THE ARMED SERVICES PROCUREMENT REGULATION GRANTED TO AMC UNDER ASPR 1-109, AND SINCE THE REQUIREMENT SET OUT IN PARAGRAPH C.2.D. OF THE "GUIDELINES" MUST BE CONSIDERED MATERIAL, SUCH REQUIREMENT MAY NOT BE DISREGARDED.

IN SUMMARY, YOUR BID FAILED TO MEET AN ESSENTIAL REQUIREMENT OF THE IFB. THEREFORE, ITS REJECTION WAS REQUIRED UNDER THE APPLICABLE STATUTE AND REGULATIONS. ACCORDINGLY, OUR DECISION OF NOVEMBER 16 IS AFFIRMED.