B-163662, APR. 2, 1968

B-163662, APR. 2, 1968

TO MR. DRIVER:

REFERENCE IS MADE TO THE LETTER OF MARCH 18, 1968, WITH ENCLOSURES, REFERENCE 263, FROM THE DIRECTOR, LOAN GUARANTY SERVICE, VETERANS ADMINISTRATION, IN CONNECTION WITH THE PROTEST BY LEROY HIGHTOWER COMPANY AGAINST THE CANCELLATION OF THE INVITATION FOR BIDS ISSUED ON JANUARY 29, 1968, BY THE ALBUQUERQUE REGIONAL OFFICE, VETERANS ADMINISTRATION, FOR SERVICES TO VA PROPERTIES.

ENCLOSED IS A COPY OF A LETTER TO LEROY HIGHTOWER COMPANY DENYING THE PROTEST. THE FOLLOWING PROVISION APPEARED IN THE INVITATION ISSUED ON JANUARY 29, 1968: "IT IS UNDERSTOOD THAT THE VA IS UNDER NO OBLIGATION TO AWARD THIS CONTRACT TO THE LOWEST BIDDER. THE AWARD WILL BE MADE TO THE CONTRACTOR WHOSE BID THE VA FEELS IS IN THE BEST INTEREST OF THE GOVERNMENT.' WE WOULD LIKE TO COMMENT ON THIS PROVISION. THE ADVERTISING STATUTES PROVIDE THAT AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE TERM "OTHER FACTORS CONSIDERED" AS USED IN THE ADVERTISING STATUTES DOES NOT AUTHORIZE AND WAS NOT INTENDED TO AUTHORIZE THE AWARDING OF CONTRACTS UNDER ADVERTISED PROCUREMENTS TO OTHER THAN THE LOW, RESPONSIBLE, QUALIFIED BIDDER. 42 COMP. GEN. 467. ASSUME THAT THE UNDERLINED PORTION OF THE ABOVE QUOTED PROVISION HAS REFERENCE TO LIMITING AWARD TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND THAT IT WAS NOT INTENDED BY THIS PROVISION TO AUTHORIZE AWARD ON ANY OTHER BASIS. HOWEVER, TO AVOID ANY POSSIBLE MISUNDERSTANDING AS TO WHAT IS INTENDED, WE SUGGEST THAT THE FOLLOWING STANDARD PROVISION BE USED INSTEAD OF THE QUOTED PROVISION:

"AWARD OF A CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'