B-169101, APR. 14, 1970

B-169101, APR. 14, 1970

BIDS--DISCARDING ALL BIDS--SPECIFICATIONS DEFECTIVE--AMBIGUOUS UNDER INVITATION FOR FURNISHING NECESSARY SERVICES AND MATERIAL FOR REPAIR OF TAILBOOMS AND SERVICES FOR REPAIR OF UH-1 COWLINGS, WITH WIDE RANGE OF PRICES REFLECTED IN BIDS RECEIVED, UNSUCCESSFUL LOW BIDDER WHO PROTESTS CANCELLATION OF INVITATIONS AND RESOLICITATION UNDER SINGEL RFP, OFFERS NO BASIS FOR OBJECTION SINCE IT IS UNCONTRADICTED THAT ORIGINAL INVITATIONS DID NOT ADEQUATELY DESCRIBE REQUIRED SERVICES, ACTUALLY OMITTING IMPORTANT FACTORS, AND UNDER ASPR 2-404.1 (B) (1) INVITATION MAY BE CANCELED AFTER OPENING WHERE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS AND CONTRACTING OFFICER HAS MADE DETERMINATION IN WRITING TO THIS EFFECT. SEE COMP. GEN. DECS. CITED.

TO AERO TECH SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 17, 1970, PROTESTING THE ACTION OF THE SUPPLY DEPARTMENT, PURCHASE DIVISION, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, IN CANCELING DEPARTMENT OF THE NAVY INVITATIONS FOR BIDS NOS. N00216-70-B-0052 AND -0054 AND RESOLICITING THE PROCUREMENTS UNDER REQUEST FOR PROPOSALS NO. N00216-70 R-0079.

BY INVITATION FOR BIDS (IFB) NO. -0052, BIDS---TO BE OPENED FEBRUARY 12, 1970---WERE REQUESTED FOR FURNISHING THE NECESSARY SERVICES AND MATERIAL FOR THE REPAIR OF UH-1 TAILBOOMS AND AH-1G TAILBOOMS, ITEMS 1 AND 2, RESPECTIVELY. ALSO, BY IFB NO. -0054 THE PROCURING ACTIVITY REQUESTED BIDS---TO BE OPENED FEBRUARY 11, 1970---FOR FURNISHING THE NECESSARY SERVICES FOR THE REAPIR OF UH-1 AIRCRAFT COWLINGS.

THE 16 BIDS RECEIVED ON IFB -0052 WERE OPENED ON FEBRUARY 12, 1970, THE PRICES RANGING FROM A LOW OF $220.05 TO A HIGH OF $1,963.17 PER JOB. SIMILAR BIDDING WAS REFLECTED IN RESPECT TO IFB -0054. IT IS REPORTED THAT BECAUSE OF THE VARIANCE IN BID PRICES, AND THE GOVERNMENT'S ESTIMATED COST, THE SOLICITATIONS WERE ANALYZED BY THE PROCURING ACTIVITY TO DETERMINE IF THE SPECIFICATIONS WERE MISLEADING TO THE BIDDERS; THAT TECHNICAL PERSONNEL OF THE ARMY AERONAUTICAL DEPOT MAINTENANCE CENTER (ARADMAC), THE REQUISITIONING ACTIVITY, WERE CONSULTED FOR ADVICE; AND THAT IT WAS THE OPINION OF ARADMAC THAT THE SPECIFICATIONS AS WRITTEN WERE NOT ALL INCLUSIVE AND THAT NEW SPECIFICATIONS SHOULD BE WRITTEN TO COVER ALL OF THE REQUIRED SERVICES. IT ALSO WAS DETERMINED THAT THE SOLICITATIONS DID NOT PROVIDE FOR ALL FACTORS SUCH AS FIRST DELIVERY REQUIREMENTS AFTER AWARD, RESPONSIBILITY FOR TRANSPORTING AND CALIBRATION OF GOVERNMENT FURNISHED EQUIPMENT, AND THE NECESSARY PERIODIC CALIBRATION REQUIREMENTS OF JIGS AND FIXTURES. SINCE THE SPECIFICATIONS FOR IFB 0052 AND IFB -0054 WERE INADEQUATE, THE CONTRACTING OFFICER DECIDED THAT THE INVITATIONS SHOULD BE CANCELED PURSUANT TO PARAGRAPH 2-404.1B (I), (II), (IV), AND (VII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). HAVE BEEN INFORMALLY ADVISED BY THE NAVAL SUPPLY SYSTEMS COMMAND THAT NEW SPECIFICATIONS FOR THE REQUIRED SERVICES HAVE BEEN WRITTEN AND THAT THE TWO PROCUREMENTS COVERED BY IFB -0052 AND IFB 0054 HAVE BEEN COMBINED INTO ONE PROCUREMENT UNDER REQUEST FOR PROPOSALS NO. N00216-70-R-0079.

YOUR PROTEST IS MADE ON THE GROUNDS THAT THE CHANGE IN THE SPECIFICATIONS DID NOT CHANGE THE BASIC WORK REQUIREMENTS; THAT THE DISCLOSURE OF YOUR LOW BID GIVES AN ADVANTAGE TO YOUR COMPETITORS; AND THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS ENDANGERED.

THE INVITATION WAS CNACELED PURSUANT TO THE AUTHORITY AS SET FORTH IN ASPR 20404.1 (B) AS FOLLOWS:

"(B) WHERE IT IS DETERMINED PRIOR TO AWARD BUT AFTER OPENING THAT THE REQUIREMENTS OF 1-1203 (RELATING TO THE AVAILABILITY AND IDENTIFICATION OF SPECIFICATIONS) HAVE NOT BEEN MET, THE INVITATION FOR BIDS SHALL BE CANCELED. INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHERE SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT---

"(I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION;

"(II) SPECIFICATIONS HAVE BEEN REVISED;

"(IV) THE INVITATION DID NOT PROVIDE FOR CONSIDERATION OF ALL FACTORS OF COST TO THE GOVERNMENT, SUCH AS COST OF TRANSPORTING GOVERNMENT-FURNISHED PROPERTY TO BIDDERS' PLANTS;

"(VIII) FOR OTHER REASONS, CANCELLATION IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT."

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ONE OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. 37 COMP. GEN. 760, 761 (1958). FURTHERMORE, UNDER THE PROVISIONS OF ASPR 2-404.1 (B) (I) AN INVITATION FOR BIDS MAY BE CANCELED AFTER OPENING WHERE THE SPECIFICATIONS CITED IN THE INVITATION ARE INADEQUATE OR AMBIGUOUS AND THE CONTRACTING OFFICER HAS MADE A DETERMINATION IN WRITING TO THIS EFFECT. THIS PROCEDURE WAS FOLLOWED IN THIS CASE.

WE ARE AWARE THAT THE REJECTION OF BIDS AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF AND ARE REQUIRED TO WORK IN THE BEST INTERESTS OF THE GOVERNMENT, THEIR ACTIONS IN REJECTING BIDS AND READVERTISING MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS LEADING TO A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WILL BE BEST SERVED THEREBY. CF. 38 COMP. GEN. 235 (1958) AND 39 ID. 86 (1959).

IN THE PRESENT CASE IT IS UNCONTRADICTED THAT THE ORIGINAL INVITATIONS DID NOT ADEQUATELY DESCRIBE THE REQUIRED SERVICES AND, IN FACT, OMITTED CERTAIN IMPORTANT FACTORS AS OUTLINED ABOVE. THE RECORD INDICATES THAT THE RANGE OF THE BIDS RECEIVED IN RESPONSE TO THE TWO INVITATIONS WAS VERY WIDE. THE WIDE RANGE OF THE BIDS RECEIVED APPEARS TO EVIDENCE THE FACT THAT THE SPECIFICATIONS DID NOT CLEARLY SET FORTH THE REQUIRED SERVICES. IN THESE CIRCUMSTANCES, AND IN VIEW OF THE BROAD DISCRETION PLACED WITH THE ADMINISTRATIVE AGENCIES IN SUCH MATTERS, WE CANNOT CONCLUDE THAT THE REJECTION OF ALL BIDS UNDER IFB 0052 AND IFB -0054 WAS ARBITRARY OR CAPRICIOUS.