B-166710, JUL. 24, 1969

B-166710, JUL. 24, 1969

BID PROTEST - INVITATION CANCELLATION DECISION DENYING PROTEST OF BUILDING MAINTENANCE CORPORATION, HIGHEST BIDDER, AGAINST CANCELLATION BY GENERAL SERVICES ADMINISTRATION OF INVITATION FOR BIDS FOR CLEANING OF LIGHT FIXTURES IN BUILDING IN BATTLE CREEK, MICHIGAN. UNAVAILABILITY OF FUNDS FOR CONTRACT OBLIGATION AT PARTICULAR TIME, IS SUFFICIENT REASON TO REJECT ALL BIDS RECEIVED. ALTHOUGH GSA SHOULD HAVE DETERMINED THE MATTER OF FUND AVAILABILITY BEFORE ISSUANCE OF INVITATION FOR BIDS, THE MASSMANN CONSTRUCTION CO. CASE HOLDING THAT THE GOVERNMENT WAS NOT REQUIRED TO READVERTISE WHEN CONTRACTOR BEFORE AWARD ALLEGED MISTAKE, IS NOT FOR APPLICATION.

TO BUILDING MAINTENANCE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 11, 1969, AND TO PREVIOUS CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST THE POSSIBLE CANCELLATION OF INVITATION FOR BIDS NO. GS-05BB-8555, ISSUED MARCH 25, 1969, BY THE GENERAL SERVICES ADMINISTRATION, PUBLIC BUILDINGS SERVICE, CHICAGO, ILLINOIS, REGIONAL OFFICE, REQUESTING BIDS FOR CLEANING OF LIGHT FIXTURES AT THE FEDERAL CENTER, BATTLE CREEK, MICHIGAN, AND AGAINST THE POSSIBLE AWARD OF A CONTRACT UNDER THAT INVITATION TO ANY BIDDER OTHER THAN YOUR COMPANY.

IN A LETTER OF PROTEST DATED APRIL 15, 1969, TO OUR OFFICE, YOU STATED THAT YOUR COMPANY WAS THE ONLY BIDDER THAT INCLUDED WITH ITS BID ALL OF THE TECHNICAL SPECIFICATIONS AND COMPLETE BID PACKAGE. YOU REFERRED TO OUR DECISION, B-164797, OCTOBER 3, 1968, WHICH CITED AND DISCUSSED THE EFFECT ON THE MATTER OF DETERMINING RESPONSIVENESS OF BIDS OF THE SO- CALLED "CHRISTIAN DOCTRINE," ENUNCIATED IN G.L. CHRISTIAN AND ASSOCIATES V UNITED STATES, 312 F.2D 418, WHEREIN IT WAS HELD THAT CONTRACT CLAUSES REQUIRED BY ADMINISTRATIVE REGULATIONS ARE INCORPORATED BY LAW IN A CONTRACT. WE INDICATED IN OUR DECISION THAT WE DID NOT BELIEVE THAT THE "CHRISTIAN DOCTRINE" COULD BE INVOKED TO MAKE AN UNRESPONSIVE BID RESPONSIVE AFTER BID OPENING AND PRIOR TO AWARD. YOU ALSO REFERRED TO THE OPINION EXPRESSED IN MASSMAN CONSTRUCTION COMPANY V UNITED STATES, 102 CT. CL. 699, THAT "TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED OF HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS.'

AN ADMINISTRATIVE REPORT ON YOUR PROTEST WAS FURNISHED BY LETTER DATED JULY 2, 1969, FROM THE GENERAL SERVICES ADMINISTRATION. IT IS REPORTED THAT FOUR BIDS IN THE AMOUNTS OF $6,924, $8,913.24, $9,108.03 AND $10,973.70, WERE RECEIVED, THAT THE HIGHEST OF THOSE BIDS WAS SUBMITTED BY YOUR COMPANY AND THAT, BY LETTERS DATED MAY 9, 1969, THE BIDDERS WERE INFORMED THAT ALL BIDS WERE REJECTED IN THE BEST INTEREST OF THE GOVERNMENT, DUE TO FUNDING AVAILABILITY. IN REGARD TO YOUR CONTENTION THAT YOU WERE THE ONLY BIDDER TO INCLUDE WITH ITS BID ALL OF THE TECHNICAL SPECIFICATIONS AND COMPLETE BID PACKAGE, THE GENERAL SERVICES ADMINISTRATION STATES THAT THIS CONTENTION IS INCORRECT AND THAT ALL BIDDERS SUBMITTED THE SAME INFORMATION AS HAD BEEN SUBMITTED WITH YOUR BID, EXCEPT THAT THE SECOND LOWEST BIDDER NEGLECTED TO RETURN THE BUY AMERICAN CERTIFICATE WITH ITS BID. THE GENERAL SERVICES ADMINISTRATION ALSO INDICATED AS ITS OPINION THAT THE MASSMAN CONSTRUCTION COMPANY CASE, AND DECISIONS OF OUR OFFICE WHICH YOU CITED IN SUPPORT OF THE PROPOSITION THAT CANCELLATION OF AN INVITATION FOR BIDS WOULD NOT BE JUSTIFIED WITHOUT "COGENT" OR "COMPELLING" REASONS, ARE NOT APPLICABLE TO THE FACTS OF THIS CASE.

IT IS FURTHER REPORTED IN THE LETTER DATED JULY 2, 1969, THAT THE CONTRACTING OFFICER HAD BEEN ADVISED THAT THE FUNDS AVAILABLE TO THE CHICAGO, ILLINOIS, REGION FOR PAYMENT UNDER A CONTRACT, SUCH AS THE ONE WHICH WOULD HAVE BEEN HERE INVOLVED, HAD BEEN DEPLETED AND AT THE TIME NO FUNDS WERE AVAILABLE FOR OBLIGATION. THE LETTER ALSO STATES THAT THIS CLEANING SERVICE WAS AN ITEM WHICH COULD BE POSTPONED AND THAT THE CONTRACTING OFFICER REJECTED ALL BIDS IN ACCORDANCE WITH THE PROVISIONS OF THE ANTI-DEFICIENCY ACT, 31 U.S.C. 665.

A COPY OF THE ADMINISTRATIVE REPORT WAS FURNISHED TO YOU, IN ACCORDANCE WITH YOUR REQUEST, AND YOUR COMMENTS ON THE REPORT WERE SUBMITTED IN YOUR LETTER DATED JULY 11, 1969.

YOU STATE THAT THE GOVERNMENT MAY NOT RELY ON THE CHRISTIAN DOCTRINE WITH REGARD TO YOUR PROTEST. HOWEVER, THE GENERAL SERVICES ADMINISTRATION HAS CLEARLY INDICATED THAT IT WAS NOT RELYING ON THE CHRISTIAN DOCTRINE WHEN IT REJECTED ALL BIDS, SINCE ALL BIDS WERE REJECTED BECAUSE OF A DEPLETION IN AVAILABLE FUNDS AND IT HAS BEEN REPORTED THAT ALL BIDDERS SUBMITTED THE SAME INFORMATION AS HAD BEEN SUBMITTED WITH THE BID OF YOUR COMPANY, EXCEPT FOR THE FAILURE OF THE SECOND LOWEST BIDDER TO RETURN THE BUY AMERICAN CERTIFICATE WITH ITS BID. FURTHERMORE, THE MATERIALITY OF THAT OMISSION MIGHT HAVE BEEN QUESTIONED SINCE IT IS APPARENT THAT VERY LITTLE, IF ANY, MATERIALS OF FOREIGN ORIGIN NORMALLY WOULD BE USED IN PERFORMING A CONTRACT FOR THE CLEANING OF LIGHT FIXTURES.

YOU ALSO STATE THAT THE ADMINISTRATIVE REPORT COVERING THE SUGGESTIONS OF FUNDING AVAILABILITY ARE AS VAGUE AND VACUOUS AS THE INFORMATION FURNISHED TO YOU BY REGION 5 GENERAL SERVICES ADMINISTRATION PERSONNEL; THAT ON A PROCUREMENT OF $10,000 THE GENERAL SERVICES ADMINISTRATION MUST HAVE HAD FUNDS AVAILABLE; AND THAT MORE INFORMATION SHOULD HAVE BEEN FURNISHED TO OUR OFFICE TO SHOW THAT THERE WERE COGENT REASONS OF THE REJECTION OF ALL BIDS, IN ACCORDANCE WITH THE OPINION STATED IN THE MASSMAN CONSTRUCTION COMPANY CASE. FURTHER, YOU CONTEND THAT THE AVAILABILITY OF FUNDS SHOULD HAVE BEEN DETERMINED BEFORE ISSUING AN INVITATION FOR BIDS AND THAT THE GENERAL SERVICES ADMINISTRATION SHOULD BE DIRECTED TO MAKE AN AWARD TO YOUR COMPANY.

ALTHOUGH THE AMOUNT OF THE CONTRACT PROPOSED TO BE ENTERED INTO UNDER THE TERMS AND CONDITIONS OF THE ADVERTISEMENT OF MARCH 25, 1969, WOULD HAVE BEEN RELATIVELY SMALL AS COMPARED WITH THE TOTAL AMOUNTS WHICH COULD BE OBLIGATED UNDER CONTRACTS AWARDED BY THE GENERAL SERVICES ADMINISTRATION, IT APPEARS FROM THE JULY 2, 1969, REPORT THAT THERE HAD BEEN A DEPLETION OF FUNDS WHICH REQUIRED THE POSTPONEMENT OF MORE THAN ONE ORIGINALLY CONTEMPLATED PROCUREMENT OF THE TYPE HERE INVOLVED.

WE AGREE THAT THE GENERAL SERVICES ADMINISTRATION SHOULD HAVE DETERMINED THE MATTER OF FUND AVAILABILITY BEFORE ISSUING AN INVITATION FOR BIDS IN THIS CASE. WE NEVERTHELESS SEE NO BASIS FOR EQUATING THE SITUATION UNDER CONSIDERATION WITH THAT OF THE MASSMAN CONSTRUCTION COMPANY CASE, WHEREIN THE COURT OF CLAIMS REJECTED A CLAIM OF A CONTRACTOR WHO HAD ALLEGED A MISTAKE IN BID PRIOR TO CONTRACT AWARD, AND THE COURT STATED ITS OPINION REGARDING CANCELLATIONS OF INVITATIONS FOR BIDS ONLY IN THE CONTEXT THAT THE GOVERNMENT DID NOT APPEAR TO HAVE BEEN REQUIRED TO READVERTISE FOR BIDS BECAUSE THE CONTRACTOR HAD ALLEGED BEFORE AWARD THAT A MISTAKE HAD BEEN MADE IN ITS BID. THE COURT OF CLAIMS OBVIOUSLY WAS NOT IMPLYING THAT AN INVITATION FOR BIDS SHOULD NOT BE CANCELLED IF THERE WAS NO LONGER A NEED FOR THE SUPPLIES OR SERVICES SPECIFIED IN AN INVITATION, OR IF THE CONTRACTING AGENCY DETERMINED THAT THE PROCUREMENT SHOULD BE POSTPONED BECAUSE APPROPRIATED FUNDS OR APPORTIONMENTS THEREOF WERE NOT AVAILABLE FOR THE PROCUREMENT INVOLVED.

SECTION 665, TITLE 31 OF THE U.S.C. PROHIBITS EXPENDITURES OR CONTRACT OBLIGATIONS IN EXCESS OF APPROPRIATED FUNDS OR APPORTIONMENTS OF APPROPRIATIONS MADE TO ACHIEVE THE MOST EFFECTIVE AND ECONOMICAL USE OF APPROPRIATED FUNDS. WHERE, AS HERE, AN ADMINISTRATIVE AGENCY OF THE GOVERNMENT HAS DETERMINED THAT FUNDS ARE NOT AVAILABLE FOR CONTRACT OBLIGATION AT A PARTICULAR TIME, WE BELIEVE THAT THIS IS A SUFFICIENT REASON TO REJECT ALL BIDS RECEIVED IN RESPONSE TO AN INVITATION FOR BIDS, AND IT DOES NOT APPEAR THAT OUR OFFICE WOULD BE WARRANTED IN ANY CASE TO OBJECT TO AN ADMINISTRATIVE APPORTIONMENT OF APPROPRIATED FUNDS WHICH, IN THE OPINION OF THE AGENCY INVOLVED, WOULD ACHIEVE THE MOST EFFECTIVE AND ECONOMICAL USE OF SUCH FUNDS.

IN THE CIRCUMSTANCES, INDICATING THAT YOU DID NOT, IN FACT, SUBMIT THE LOWEST RESPONSIVE BID IN THIS CASE, AND THAT AWARD WAS NOT MADE TO ANY BIDDER BECAUSE OF A DETERMINATION THAT FUNDS WERE NOT AVAILABLE FOR CONTRACT OBLIGATION AT THE PARTICULAR TIME, WE FIND NO MERIT TO YOUR PROTEST WHICH IS HEREBY DENIED.