B-164649, FEB. 19, 1969

B-164649, FEB. 19, 1969

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO THE REQUEST BY ELECTRO-OPTICAL SYSTEMS, INCORPORATED, FOR RECONSIDERATION OF OUR DECISION OF NOVEMBER 7, 1968, IN WHICH WE HELD THAT NO AWARD SHOULD BE MADE UNDER SOLICITATION NO. DAAB07- 68-B-0485, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

IN A REPORT DATED JANUARY 22, 1969, THE GENERAL COUNSEL, UNITED STATES ARMY MATERIEL COMMAND, ADVISES THAT AS A RESULT OF OUR DECISION THE SUBJECT INVITATION WAS CANCELLED. HOWEVER, HE RECOMMENDS FAVORABLE CONSIDERATION OF THE REQUEST BY EOS AND ASKS AUTHORIZATION TO REINSTATE THE EOS BID AND AWARD A CONTRACT TO THAT FIRM FOR THE MULTI YEAR QUANTITY OF 4,331 UNITS. HIS RECOMMENDATION IS BASED UPON THE OPINION THAT ALTHOUGH THE SOLICITATION WAS DEFECTIVE, FAIRNESS AND EQUITY REQUIRE SUCH ACTION SINCE EOS DID NOT CONTRIBUTE TO THE DEFICIENCY IN THE SOLICITATION AND ALL BIDS HAVE BEEN EXPOSED. IN THE EVENT THIS RECOMMENDATION IS NOT APPROVED, THE GENERAL COUNSEL ADVISES THAT A NEW INVITATION FOR BIDS WILL BE ISSUED WITH AN EXTENDED DELIVERY SCHEDULE.

UPON A FURTHER REVIEW OF THIS MATTER, WE HAVE REACHED THE CONCLUSION THAT OUR OFFICE SHOULD NOT OBJECT TO THE PROPOSED ACTION. OUR POSITION IN THIS REGARD IS INFLUENCED BY SEVERAL FACTORS. AS NOTED IN OUR EARLIER DECISION, THE DETERMINATION TO LIMIT THE QUANTITY TO BE AWARDED TO ANY ONE BIDDER WAS REASONABLE IN THE CIRCUMSTANCES. MOREOVER, AND MORE IMPORTANTLY, WE BELIEVE THE QUANTITY BEING PROCURED AND THE METHOD OF EVALUATION AND AWARD WERE STATED WITH SUFFICIENT CLARITY TO AFFORD ALL BIDDERS AN EQUAL BASIS FOR COMPETING. IN ADDITION, THE 13 BIDS WERE PREPARED AND SUBMITTED IN GOOD FAITH ON THE BASIS OF THE QUANTITY STATED IN THE INVITATION AND THE BID PRICES HAVE BEEN EXPOSED. ALSO, WE BELIEVE IT IS HIGHLY SPECULATIVE WHETHER THE GOVERNMENT WOULD HAVE RECEIVED A BETTER PRICE HAD BIDS BEEN SOLICITED UPON THE FULL QUANTITY NEEDED. ANY RATE, ALL BIDDERS WERE COMPETING FOR THE LESSER QUANTITY ON AN EQUAL BASIS. IN VIEW THEREOF, AWARD TO THE LOW BIDDER WILL NOT BE PREJUDICIAL TO THE OTHER BIDDERS AND, THEREFORE, WE WILL NOT OBJECT TO REINSTATEMENT OF THE INVITATION AND AWARD TO EOS.

IN THE LEGAL OPINION ACCOMPANYING THE GENERAL COUNSEL'S REPORT IT IS STATED THAT THE EFFECT OF OUR DECISION IN THIS MATTER WOULD BE TO PREVENT THE GOVERNMENT "FROM SOLICITING LESS THAN ITS ACTUAL NEEDS EVEN THOUGH THE CAPACITY AND CAPABILITY OF INDUSTRY TO FULFILL THOSE NEEDS WAS LACKING.' IT IS OUR OPINION THAT THE REQUIREMENT FOR "FREE AND FULL COMPETITION" CAN BE FULFILLED IN SUCH SITUATIONS BY A PROPER DRAFTING OF THE INVITATION. THE INVITATION SHOULD SOLICIT BIDS ON THE ACTUAL NEEDS OF THE PARTICULAR PROCURING ACTIVITY AND PERMIT BIDS FOR LESS THAN THE FULL QUANTITY, WITH A MINIMUM IF DESIRED, AND PROVIDE FOR MULTIPLE AWARDS.