B-161950, DEC. 26, 1967

B-161950, DEC. 26, 1967

BIDS - AMBIGUOUS DECISION TO GULTON INDUSTRIES, INC., RE DECISION OF NOVEMBER 2, 1967, DENYING PROTEST AGAINST AWARD TO ANOTHER BIDDER BY NAVAL AIR SYSTEMS COMMAND, DEPT. OF THE NAVY. A PROTESTING BIDDER WHO HAD BID PROPERLY REJECTED AS NONRESPONSIVE BECAUSE OF FAILURE TO QUOTE PRICE AND WHO ALLEGES POSSIBILITY OF AMBIGUITY IN INVITATION SCHEDULE MAY NOT HAVE RULE THAT AMBIGUITIES INITIATED IN GOVERNMENT CONTRACT CONSTRUED IN FAVOR OF CONTRACTOR SINCE BIDDER WAS NOT AWARDED CONTRACT AND, THEREFORE RULE IS NOT FOR APPLICATION.

TO GULTON INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1967, REQUESTING RECONSIDERATION OF DECISION B-161950, DATED NOVEMBER 2, 1967, WHICH DENIED THE PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS N00019-67-B-0180, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND, DEPARTMENT OF THE NAVY.

IN THE DECISION OF NOVEMBER 2, 1967, IT WAS STATED THAT THERE WAS NO LEGAL BASIS TO OBJECT TO THE REJECTION OF YOUR BID UNDER THE INVITATION SINCE THE FAILURE TO QUOTE A PRICE FOR THE FIRST ARTICLES COVERED BY ITEM 2 WAS A MATERIAL DEVIATION IN THAT IT DEPRIVED THE GOVERNMENT OF A SUBSTANTIVE AND VALUABLE RIGHT RESERVED TO IT BY THE FIRST ARTICLE TESTING PROVISIONS OF THE INVITATION. WHILE IT WAS NOTED THAT YOUR VIEW THAT THE TWO UNITS OF ITEM 2 WERE INCLUDED IN THE BASIC QUANTITY OF PRODUCTION BATTERIES COVERED BY ITEM 1 HAD SOME MERIT IN THAT SUCH CONSTRUCTION OF THE SCHEDULE IS POSSIBLE, IT WAS OBSERVED THAT THE OTHER TWO BIDDERS HAD NO DIFFICULTY IN RESPONDING FULLY AND RESPONSIVELY TO THE INVITATION SCHEDULE AND THEREFORE THE LANGUAGE EMPLOYED IN ITEM 2 WAS NOT VIEWED AS BEING SO AMBIGUOUS AS TO REQUIRE THE AWARD TO BE QUESTIONED.

YOU REFER TO THE RECOGNITION IN THE DECISION OF THE POSSIBILITY OF AMBIGUITY IN THE SCHEDULE AND SUGGEST THAT THERE IS FOR APPLICATION THE RULE THAT AMBIGUITIES INITIATED IN A CONTRACT BY THE GOVERNMENT SHOULD BE CONSTRUED IN FAVOR OF THE CONTRACTOR. HOWEVER, AS NO CONTRACT WAS AWARDED TO YOU, THAT RULE IS NOT FOR APPLICATION.

YOU STATE FURTHER THAT A REPRESENTATIVE OF THE CONTRACTING OFFICER CONTACTED YOU PRIOR TO AWARD TO REQUEST A PRICE FOR ITEM 2. HOWEVER, IN THAT CONNECTION, IN 17 COMP. GEN. 554, 558, 559, IT WAS STATED:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR 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. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056 -

-* * * 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.-" ..END :