B-165206, JAN. 8, 1969

B-165206, JAN. 8, 1969

TO JAMES E. MILLER COMPANY:

ON SEPTEMBER 4, 1968, YOU PROTESTED AGAINST ANY AWARD OF A CONTRACT TO YORK-SHIPLEY, INC., UNDER INVITATION FOR BIDS (IFB) NO. DSA 703-69 B-0001, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO. THE IFB WAS ISSUED ON A BRAND NAME OR EQUAL BASIS TO FULFILL A REQUIREMENT FOR THIRTEEN OIL BURNING FURNACES TO BE DELIVERED FOR SHIPMENT TO A REQUISITIONING ACTIVITY IN SOUTH KOREA. ITEM I OF THE SUBJECT IFB SET FORTH A DESCRIPTION OF THE SALIENT FEATURES OF THE FURNACES, INCLUDING MAXIMUM DIMENSIONS OF THE DEVICES, AS FOLLOWS: "1. REQN NO. AT 4-75-8037- 0001

DCSC CONTROL NO. 8117A072

FURNACE, WARM AIR, OIL BURNING, FORCED HOT AIR, 650,000 BTU RATED OUTPUT W/PRESSURE ATOMIZING OIL BURNING, AUTOMATIC CONTROLS W/ROOM THERMOSTAT, MAX CLIM. FURNACE 57 IN. L., 72 IN. W., 73 IN. H., BLOWER CABINET, 51 IN. L., 48 IN. W., 62 IN. H., ELECTRICAL DATA 115 VAC. 60 CYCLE, SINGLE PHASE. AS REPRESENTED BY RAY OIL BURNER CO. MDL 650 OR EQUAL.' THESE SPECIFICATIONS WERE PRESCRIBED EVEN THOUGH THE REQUISITIONING ACTIVITY DID NOT STIPULATE ANY DIMENSIONAL LIMITATIONS.

WHEN BIDS WERE OPENED THE PROCURING AGENCY DETERMINED THAT THE YORK SHIPLEY COMPANY HAD SUBMITTED THE LOWEST OFFER, AFTER DEDUCTING APPROPRIATE DISCOUNTS. YOU PROTESTED THAT YORK'S BID WAS NOT RESPONSIVE TO THE SALIENT REQUIREMENTS OF THE IFB AS THIS COMPANY SPECIFIED A MODEL WHICH EXCEEDED THE MAXIMUM PRESCRIBED FURNACE HEIGHT OF 73 INCHES. IN A REPORT DATED NOVEMBER 5, 1968, THE DEFENSE SUPPLY AGENCY CONFIRMED YOUR CONTENTION AND CONCLUDED THAT IT WOULD HAVE TO REJECT YORK'S BID FOR THIS REASON. HOWEVER, AFTER CHECKING THE REQUIREMENTS OF THE REQUISITIONING AGENCY AND BEING ADVISED THAT THE DIMENSIONAL LIMITATIONS INCLUDED IN THE IFB (WHICH WERE THE DIMENSIONS OF THE RAY OIL BURNER MODEL REFERRED TO) WERE NOT NECESSITATED BY ANY SPACE LIMITATIONS AT THE INSTALLATION SITE, DSA DETERMINED THAT THE IFB WOULD BE CANCELLED AND THE REQUIREMENT READVERTISED SINCE THE MINIMUM NEEDS OF THE GOVERNMENT HAD NOT BEEN STATED IN THE IFB. YOU CONTEND THAT THE SUBJECT IFB SHOULD NOT HAVE BEEN CANCELLED AND AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY AS IT WAS THE SECOND LOWEST BIDDER.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. PERKINS V LUKENS STEEL CO., 310 U.S. 113. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (B) (I) ALSO RECOGNIZES THE AUTHORITY OF THE CONTRACTING OFFICER TO REJECT ALL BIDS AFTER OPENING WHERE HE DETERMINES THAT THE PARTICULAR INVITATION INCLUDES ERRONEOUS SPECIFICATIONS. SINCE THE RESPONSIBILITY FOR MAKING THIS DETERMINATION RESTS WITH THE PURCHASING OFFICE, OUR OFFICE WILL NOT OBJECT TO SUCH A DECISION UNLESS THIS DISCRETIONARY POWER HAS BEEN ABUSED. 159287, JULY 26, 1966. WHERE CANCELLATION OF AN IFB WAS EFFECTED BECAUSE THE INVITATION FAILED TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS IN THE SUBJECT IFB, WE HELD THAT THE ACTION WAS NOT AN ABUSE OF SUCH AUTHORITY. B-162067, OCTOBER 24, 1967. ACCORDINGLY, WE CANNOT CONSIDER THE DECISION TO CANCEL THE INVITATION IN THE SUBJECT CASE AS IMPROPER.