B-165272, JAN. 3, 1969

B-165272, JAN. 3, 1969

TO COMFORT, DOLACK, HANSLER AND BILLETT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1968, WRITTEN AS ATTORNEYS FOR HANSON EXCAVATING COMPANY, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 3, 1968, IN WHICH WE DENIED THE COMPANY'S PROTEST AGAINST THE REJECTION OF ALL BIDS UNDER, AND THE SUBSEQUENT CANCELLATION OF, INVITATION FOR BIDS NO. DABF15-68-B0309, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, LOGISTICS CENTER, FORT LEWIS, WASHINGTON.

YOUR PRIMARY CONTENTION IS SUMMED UP IN THE CONCLUDING PARAGRAPH OF YOUR LETTER: "AGAIN WE SAY THAT IF THE HANSON EXCAVATING COMPANY, INC., BID WAS RESPONSIVE, AND THAT NOW SEEMS TO BE CONCEDED, IT IS RESPONSIVE BECAUSE THE SPECIFICATIONS CLEARLY PERMIT SUCH BID. IN THAT EVENT THE SPECIFICATIONS ARE NOT AMBIGUOUS AND THE BID WAS WRONGFULLY REJECTED BY THE CONTRACTING OFFICER. IT IS SUBMITTED THE PROTEST OF HANSON EXCAVATING COMPANY, INC., TO YOUR OFFICE SHOULD BE ALLOWED, THE CONTRACTING OFFICER SHOULD BE REVERSED AND THE CONTRACT AWARDED ON THE BID OF HANSON EXCAVATING COMPANY, INC.'

WE AGREE THAT HANSON EXCAVATING COMPANY'S BID WAS FOUND RESPONSIVE TO THE INVITATION. THE CONTRACTING OFFICER ULTIMATELY FOUND THE BID RESPONSIVE, AFTER INITIALLY RULING THE BID NONRESPONSIVE. WE CANNOT, HOWEVER, AGREE WITH YOUR CONTENTION THAT IF A BID IS RESPONSIVE, THE SPECIFICATIONS CANNOT AT THE SAME TIME BE AMBIGUOUS. THEORETICALLY, AN INVITATION MIGHT BE SO AMBIGUOUS AS TO PERMIT EACH BIDDER, IN EFFECT, TO DRAFT HIS OWN SPECIFICATIONS. WHILE EVERY BID COULD THEN BE RESPONSIVE TO THE INVITATION, THERE WOULD BE ENTIRELY LACKING THE COMMON BASIS FOR EVALUATION OF BIDS, WHICH FORMS A CORNERSTONE OF THE COMPETITIVE BIDDING SYSTEM. SEE 11 COMP. GEN. 220 (1931) AND 10 COMP. GEN. 480 (1931).

WE REJECTED HANSON EXCAVATING COMPANY'S PROTEST AGAINST THE CANCELLATION OF THE INVITATION IN OUR DECISION OF DECEMBER 3 ON THE GROUND THAT A BIDDER, LIKE HANSON, WHO OFFERED LONGER PERIODS OF TIME FOR COMMENCEMENT AND COMPLETION THAN THOSE SET OUT IN PARAGRAPH 20 OF THE SPECIAL PROVISIONS, WAS NOT BIDDING ON THE SAME TERMS AS THOSE WHO MET THE TERMS STATED IN THAT PARAGRAPH AND MAY NOT HAVE INTERPRETED THE PROVISIONS OF THE IFB AS PERMITTING DIFFERENT TERMS, AS YOU DID. IN THIS CONNECTION, WE CANNOT AGREE WITH YOUR STATEMENT THAT THERE IS ABSOLUTELY NO EVIDENCE THAT ANY OTHER BIDDER CONSIDERED THE SPECIFICATIONS IN ANY MANNER DIFFERENT THAN HANSON EXCAVATING COMPANY. IN VIEW OF THE CONTRADICTORY PROVISIONS OF THE IFB, THE FAILURE OF ANY OTHER BIDDER TO INDICATE DIFFERENT COMMENCEMENT AND COMPLETION DATES THAN THOSE SET OUT IN PARAGRAPH 20 OF THE SPECIAL PROVISIONS CERTAINLY IS SOME INDICATION THAT THE BIDDERS FELT SUCH DATES TO BE FINDING IN REGARD TO A MAXIMUM COMPLETION TIME. STANDS TO REASON THAT CONTRACTORS WOULD PROPOSE ADDITIONAL TIME IN WHICH TO COMPLETE A PROJECT, POSSIBLY LONGER THAN THE PERIODS OF TIME STATED BY HANSON EXCAVATING COMPANY, IF IN DOING SO THEY FELT THEIR BID WOULD STILL BE RESPONSIVE TO THE INVITATION.

THIS OFFICE HAS RECOGNIZED THAT THE AUTHORITY VESTED IN THE CONTRACTING OFFICER TO REJECT ANY OR ALL BIDS AND CANCEL THE INVITATION IS EXTREMELY BROAD. 39 COMP. GEN. 396, 399. MOREOVER, ARMED SERVICES PROCUREMENT REGULATION 2-404.1 (B) (I) SPECIFICALLY PROVIDES FOR THE CANCELLATION OF INVITATIONS FOR BIDS AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. THEREFORE, NO NEW EVIDENCE HAVING BEEN PRESENTED, WE MUST CONFIRM OUR DECISION OF DECEMBER 3 UPHOLDING THE PROCUREMENT OFFICIALS IN REJECTING ALL BIDS AND CANCELLING THE INVITATION.