B-158991, JUL. 12, 1966

B-158991, JUL. 12, 1966

TO FEEDBACK SYSTEMS, INCORPORATED:

WE REFER TO YOUR LETTER OF APRIL 11, 1966, WITH ENCLOSURES, TO CONGRESSMAN RICHARD SCHWEIKER, PROTESTING THE CANCELLATION, AFTER BID OPENING, OF INVITATION FOR BIDS NO. CC-426-6, ISSUED BY THE JOHN F. KENNEDY SPACE CENTER (KSC).

ITEM 1 ON PAGE 3 OF THE IFB WAS FOR A MOBILE PNEUMATIC CONSOLE (NEAR 0 PSIA TO 10,000 PSIG); ITEM 2 WAS FOR A HIGH PRESSURE PNEUMATIC CONSOLE, (20,000 PSIG MAXIMUM) AND ITEM 3 WAS FOR AN INSPECTION PLAN. PAGE 12 OF THE IFB PROVIDED:

"GROUPING FOR AGGREGATE AWARD

BIDS WILL BE EVALUATED AND AWARD WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID FOR ITEMS 1, 2 AND 3.'

BIDS WERE OPENED ON JANUARY 28, 1966, AND EIGHT BIDS WERE RECEIVED. SEVEN BIDS WERE SUBMITTED BY SMALL BUSINESS SOURCES AND ONE BID WAS SUBMITTED BY A LARGE BUSINESS CONCERN. THE PRICES QUOTED IN YOUR BID WHICH WAS LOW AND THE PRICES QUOTED IN THE SECOND LOW BID WERE AS FOLLOWS:

CHART

BIDDER ITEM 1 ITEM 2 ITEM 3

FEEDBACK SYSTEMS $12,604 $14,457 (*)

VALUMETRICS $14,550 $16,350 N/A

(*) PRICE INCLUDED IN ITEMS 1 AND 2.

THE OTHER BIDS RANGED FROM $40,000 TO $85,674. THE RANGE OF PRICES IN THE OTHER BIDS FOR ITEM 2 WAS FROM $19,455 TO $44,784.35.

ON APRIL 7, 1966, KSC NOTIFIED BIDDERS THAT THE INSTANT IFB WAS BEING CANCELLED BECAUSE OF INADEQUATE SPECIFICATIONS. YOU HAVE QUESTIONED WHETHER THE CANCELLATION OF THIS IFB WAS JUSTIFIED. YOU ARE PARTICULARLY INTERESTED IN ASCERTAINING IF FAVORITISM TO ANOTHER BIDDER MAY HAVE INFLUENCED KSC'S DECISION TO CANCEL THE IFB. YOUR LETTER OF APRIL 11, 1966, BRINGS TO OUR ATTENTION YOUR OBJECTION TO THE TELEPHONIC REQUEST BY KSC ON FEBRUARY 15, 1966, FOR DESCRIPTIVE DATA. ALSO, YOUR LETTER BRINGS TO OUR ATTENTION THAT THE PROCURING ACTIVITY NOTIFIED YOU ON MARCH 31, 1966, THAT YOUR TECHNICAL DATA WAS "GOOD" AND THAT YOU WOULD RECEIVE AN AWARD WITHIN A WEEK OR TWO AFTER CERTAIN FUNDING PROBLEMS HAD BEEN RESOLVED. YOU INQUIRE WHY YOUR LETTER OF MARCH 28, 1966, TO KSC, REQUESTING INFORMATION REGARDING THE STATUS OF THIS PROCUREMENT, WAS NOT ANSWERED.

ITEM 2 OF THE IFB WAS INCLUDED PURSUANT TO PURCHASE REQUEST NO. 53083603. ON MARCH 8, 1966, THE ASSISTANT DIRECTOR FOR SUPPORT OPERATIONS AT KSC ISSUED A MEMORANDUM ADVISING THAT THE CONDITIONAL ALLOCATION OF FUNDS MADE ON DECEMBER 22, 1965, FOR EQUIPMENT, SUPPLIES AND MATERIALS, WAS BEING REVISED AND THAT THE ALLOCATION OF FUNDS FOR THESE ITEMS WOULD BE ADJUSTED DOWNWARD BY ABOUT ONE MILLION DOLLARS. THE REASON FOR THIS DOWNWARD ADJUSTMENT WAS TO CONSERVE FISCAL YEAR 1966 FUNDS. THIS MEMORANDUM REQUESTED THAT LISTS OF PURCHASE REQUESTS FOR EQUIPMENT, SUPPLIES OR MATERIALS BE PREPARED IN THOSE SITUATIONS WHERE THE PROCUREMENT HAD BEEN INITIATED BUT THE FUNDS HAD NOT BEEN OBLIGATED.

THE PURCHASE REQUEST FOR ITEM 2 OF THE INSTANT PROCUREMENT WAS LISTED AS A PURCHASE REQUEST FOR WHICH THE FUNDS COULD BE DECOMMITTED. THE REASON GIVEN WAS THAT THIS PROCUREMENT WAS ONE OF THE PROCUREMENTS THAT WAS LOWEST ON THE PRIORITY LISTINGS PREPARED BY THE MATERIALS ANALYSIS BRANCH. ON MARCH 18, 1966, THE DECOMMITMENT OF FUNDS FOR THE PURCHASE REQUEST FOR ITEM 2 WAS CONFIRMED BY THE ASSISTANT DIRECTOR OF SUPPORT OPERATIONS.

WITH RESPECT TO YOUR CONTENTION THAT YOU WERE REQUESTED TO FURNISH DESCRIPTIVE DATA AFTER BID OPENING, THE BUYER HAS STATED AS FOLLOWS:

" "I ASKED FOR INFORMATION CONCERNING FEEDBACK'S EXPERIENCE WITH THESE (IFB) TYPE ITEMS, EXPERIENCE WITH OTHER GOVERNMENT CONTRACTS, FACILITIES AND FINANCIAL STATUS. MR. BAILEY WAS TO COMPILE THIS INFORMATION AND FORWARD IT TO ME. I DID NOT SOLICIT DESCRIPTIVE DATA SUCH AS DRAWINGS, ILLUSTRATIONS OR BROCHURES.'

" "IT APPEARS THAT MR. BAILEY MISUNDERSTOOD MY REQUEST AS HE REFERS TO "DESCRIPTIVE LITERATURE" IN HIS LETTER OF FEBRUARY 16, 1966. I DID NOT HAVE TIME TO COMPLETELY REVIEW THE DATA, HOWEVER, SINCE MR. BAILEY USED THE TERM "DESCRIPTIVE LITERATURE," THE PACKAGE WAS TREATED AS UNSOLICITED DESCRIPTIVE DATA, WAS NOT DISCLOSED AND WAS NOT CONSIDERED AS QUALIFYING THE FEEDBACK BID.'"

IT IS NASA'S POSITION THAT YOUR INTERPRETATION OF THE TELEPHONE CONVERSATION OF FEBRUARY 15, 1966, RESULTED FROM A MISUNDERSTANDING. THIS CONNECTION NASA ADVISES THAT THERE NEVER WAS ANY QUESTION REGARDING THE RESPONSIVENESS OF YOUR BID.

IN REGARD TO YOUR CONVERSATION WITH THE BUYER ON MARCH 31, 1966, YOUR CONTENTIONS HAVE BEEN CONTRADICTED BY THE BUYER. IT IS THE BUYER'S CONTENTION THAT IN VIEW OF THE FUNDING PROBLEMS HE WAS IN NO POSITION ON MARCH 31, 1966, TO MAKE ANY COMMENT REGARDING YOUR DATA OR THE LIKELIHOOD OF AN AWARD TO YOU. YOU WERE NOT ADVISED OF THE IMMINENT CANCELLATION OF THE IFB ON MARCH 31, 1966, SINCE THE OFFICIAL APPROVAL NECESSARY FOR THE CANCELLATION HAD NOT BEEN RECEIVED BY THE BUYER. KSC CONSIDERED THAT YOUR CONVERSATION WITH KSC ON MARCH 31, 1966, ANSWERED THE QUESTION IN YOUR LETTER OF MARCH 28, 1966; THEREFORE, NO FORMAL REPLY TO YOUR LETTER OF MARCH 28, 1966, WAS MADE BY KSC.

CONSIDERING THE AGGREGATE AWARD PROVISION ON PAGE 12 OF THE IFB, QUOTED ABOVE, THE CANCELLATION OF ITEM 2 OF THE IFB WOULD REQUIRE THE CANCELLATION OF THE ENTIRE IFB. THE RULE HERE IS THAT BIDS MUST BE EVALUATED ON A COMMON BASIS WHICH IS PRESCRIBED IN THE IFB. SEE B 157828, DECEMBER 16, 1965, AND 40 COMP. GEN. 160, 161. CONSEQUENTLY, THE QUESTION IS--- WAS THE CANCELLATION OF ITEM 2 OF THE IFB JUSTIFIED?

WE, OF COURSE, RECOGNIZE THAT THE CANCELLATION OF AN IFB AFTER BID OPENING IS PREJUDICIAL TO THE LOW BIDDER AND THEREFORE COGENT AND COMPELLING REASONS ARE NECESSARY TO JUSTIFY SUCH CANCELLATION. SEE 39 COMP. GEN. 396. MUCH OF THE CONFUSION IN THIS CASE PROBABLY COULD HAVE BEEN AVOIDED IF KSC'S LETTER OF APRIL 7, 1966, WHICH NOTIFIED THE BIDDERS OF THE CANCELLATION OF THE IFB, HAD CLEARLY SET FORTH THE REASONS WHY THE IFB WAS BEING CANCELLED.

PURSUANT TO OUR REVIEW OF THE CONTENTIONS IN YOUR LETTER OF APRIL 11, 1966, AND KSC'S ANSWERS THERETO, WE FIND NO SUPPORT FOR THE ALLEGATION THAT FAVORITISM INFLUENCED THE DECISION TO CANCEL THE INSTANT IFB.

THE RECORD PRESENTED TO OUR OFFICE INDICATES THAT ITEM 2 OF THE IFB WAS CANCELLED BECAUSE SUFFICIENT FUNDS FOR THE PROCUREMENT OF THIS ITEM WERE NOT AVAILABLE. IN B-157419, OCTOBER 18, 1965, WE HELD THAT AN IFB COULD BE CANCELLED AFTER BID OPENING IF SUFFICIENT FUNDS FOR THE PROCUREMENT ARE NOT AVAILABLE. WE POINTED OUT THAT THE COURTS HAVE CONSISTENTLY HELD THAT A REQUEST FOR BIDS BY THE GOVERNMENT DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, INCLUDING THE LOWEST CORRECT BID. APPLYING THIS RATIONALE TO THE INSTANT CASE, WE HAVE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DECISION TO CANCEL ITEM 2 OF THE IFB. INDICATED ABOVE, THE CANCELLATION OF ITEM 2 OF THE IFB WOULD REQUIRE THE CANCELLATION OF THE ENTIRE IFB. IN VIEW OF OUR FINDING THAT THE CANCELLATION OF ITEM 2 OF THE IFB WAS JUSTIFIED, WE HAVE NO BASIS FOR OBJECTING TO THE CANCELLATION OF THE ENTIRE IFB.