B-162382, MAY 17, 1968

B-162382, MAY 17, 1968

TO MATTHEWS AND THORP:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1967, PROTESTING ON BEHALF OF GENERAL ELECTRODYNAMICS CORPORATION (GEC) AGAINST CANCELLATION OF INVITATION FOR BIDS NO. AC93-7-244 AND READVERTISEMENT OF THE REQUIREMENT BY THE FEDERAL AVIATION ADMINISTRATION (FAA).

THE INVITATION WAS ISSUED ON JUNE 8, 1967, AND CALLED FOR BIDS FOR FURNISHING 1,000 SCAN CONVERSION STORAGE TUBES (RAYTHEON P/N CK1383, OR EQUAL) MANUFACTURED IN ACCORDANCE WITH ARTICLE 2 ENTITLED "SPECIFICATIONS.' SIX BIDS WERE RECEIVED AND OPENED ON JULY 19, 1967, AND GEC SUBMITTED THE LOWEST BID IN THE AMOUNT OF $714,000. DURING EVALUATION OF THE BIDS IT WAS FOUND THAT THE INVITATION WAS AMBIGUOUS AS TO THE SUPPLIES CALLED FOR. THE INVITATION INDICATED THE GOVERNMENT WAS INTERESTED IN A CK1383 TUBE, BRAND NAME OR EQUAL; WHEREAS, THE GOVERNMENT DESIRED A TUBE TO BE NEWLY MANUFACTURED IN ACCORDANCE WITH SPECIFICATION FAA-E-2276, DATED NOVEMBER 25, 1966, AS AMENDED ON MARCH 24, 1967.

IT IS REPORTED THAT MAJOR TECHNICAL DIFFERENCES EXISTED BETWEEN THE TYPE OF TUBE SPECIFIED IN THE INVITATION AND THE TUBE CALLED FOR IN SPECIFICATION FAA-E-2276 AND THEREFORE THE BIDDERS WERE NOTIFIED BY TELEGRAM ON AUGUST 28, 1967, THAT THE INVITATION WAS CANCELED. SEPTEMBER 15, 1967, THE BIDDERS WERE INFORMED THAT THE CANCELLATION WAS IMPROPER BUT AGAIN ON NOVEMBER 30, 1967, THE INVITATION WAS CANCELED. NEW INVITATION, NO. AC94-8-109 WAS ISSUED ON DECEMBER 14, 1967, AND ON FEBRUARY 16, 1968, GEC, THE LOW BIDDER, WAS AWARDED CONTRACT NO. FA68AC- 5298 FOR 800 SCAN CONVERSION TUBES IN THE AMOUNT OF $542,400.

IT IS YOUR CONTENTION THAT WHILE THE INVITATION REFERENCED THE RAYTHEON PART NUMBER CK1383 OR EQUAL IT ALSO REQUIRED THAT THE TUBE BE MANUFACTURED IN ACCORDANCE WITH FAA'S SPECIFICATION E-2276. YOU STATE THAT THERE IS NOTHING AMBIGUOUS IN DESIGNATING A PARTICULAR PART NUMBER OR ITS EQUAL FOR THE PURPOSE OF IDENTIFICATION AND AT THE SAME TIME REQUIRING THAT THE PART BE BUILT IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS. WE ARE UNABLE TO AGREE WITH YOUR CONTENTION. THE ADMINISTRATIVE AGENCY REPORTS THAT FROM AN ENGINEERING VIEWPOINT THE INITIAL INVITATION COULD BE CONSIDERED AMBIGUOUS. CERTAIN CHARACTERISTICS OF THE CK1383 TUBE REFERRED TO IN THE SOLICITATION ARE SIGNIFICANTLY DIFFERENT FROM CORRESPONDING CHARACTERISTICS OF THE TUBE DESCRIBED IN THE SPECIFICATION FAA-E-2276. INASMUCH AS MAJOR TECHNICAL DIFFERENCES EXIST IN THE TWO TYPES OF TUBES SPECIFIED AND SINCE IT IS ADMINISTRATIVELY REPORTED THAT TUBES IDENTICAL TO THE CK1383 WOULD NOT MEET THE NEEDS OF THE GOVERNMENT, WE SEE NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION TAKEN. MOREOVER, EVEN IF THE SPECIFICATIONS WERE NOT SUFFICIENTLY AMBIGUOUS TO REQUIRE THE CANCELLATION OF THE INVITATION IT APPEARS THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH IN THE BELIEF THAT CORRECTED SPECIFICATIONS WOULD IMPROVE THE INVITATION WHEN HE ACTED UNDER THE AUTHORITY OF 41 U.S.C. 253 (B), AS IMPLEMENTED BY FPR SEC. 1-2.404-1 (B) (1), WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION FOR BIDS CONTAINING AMBIGUOUS SPECIFICATIONS.

IT CONSISTENTLY HAS BEEN HELD THAT THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS A MATTER OF ADMINISTRATIVE DISCRETION. ALSO, IT HAS BEEN HELD THAT A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BID. 17 COMP. GEN. 554; 26 ID. 49; PERKINS V LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V CARNEY, 6 F.SUPP. 761; COLORADO PAV. CO. V MURPHY, 78 F.28. IN THE CIRCUMSTANCES WE FIND THAT THE ACTION TAKEN IN CANCELING THE INVITATION WAS NOT ARBITRARY OR AN ABUSE OF THE ADMINISTRATIVE POWERS.

ACCORDINGLY, YOUR REQUEST FOR REINSTATEMENT OF THE ORIGINAL INVITATION IS DENIED.