B-171116, JAN 29, 1971

B-171116, JAN 29, 1971

BID PROTEST - CANCELLATION OF IFB - AMBIGUITY DENIAL OF PROTEST BY D. G. MACHINERY AND GAGE CO., AGAINST CANCELLATION OF INVITATION FOR BIDS FOR NUMERICALLY CONTROLLED LATHES ISSUED BY WARNER ROBINS AIR MATERIAL AREA ON THE BASIS OF AN AMBIGUITY IN THE INVITATION. WHERE THE AIR FORCE INTENDED TO SOLICIT BIDS ON CONTROLLED LATHES WITH OR WITHOUT A "TAILSTOCK" AND THE SPECIFICATION SHEET READ IN PART, "DISTANCE BETWEEN CENTERS WITH TAILSTOCK FLUSH WITH END OF BED (MIN.) 54", SUCH A STATEMENT COULD BE CONSTRUED AS A REQUIREMENT FOR A TAILSTOCK AND MAY HAVE MISLED BIDDERS. THEREFORE IT WAS CONCLUDED BY THE CONTRACTING OFFICER THAT THE SPECIFICATION WAS AMBIGUOUS AND THAT CANCELLATION PURSUANT TO ASPR 2-404.1(B)(I) WAS APPROPRIATE. THERE IS NO JUSTIFICATION TO QUESTION THE ACTION OF THE AIR FORCE AND THE PROTEST MUST BE DENIED.

TO D. G. MACHINERY AND GAGE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED OCTOBER 22, 1970 AND NOVEMBER 5, 1970, WITH ENCLOSURES, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. F09603-71-B-3100 ISSUED BY HEADQUARTERS, WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA.

THE INVITATION WAS ISSUED ON AUGUST 20, 1970, AS THE SECOND STEP OF A TWO STEP PROCUREMENT FOR NUMERICALLY CONTROLLED LATHES. BIDS WERE OPENED ON SEPTEMBER 22, 1970, AND D. G. MACHINERY AND GAGE COMPANY (DGMG), WAS THE LOW EVALUATED BIDDER. HOWEVER, ON SEPTEMBER 28, 1970, ONE OF THE OTHER BIDDERS, LODGE AND SHIPLEY COMPANY, QUESTIONED THE INTENT OF THE SPECIFICATION REGARDING THE "TAILSTOCK." THE FIRM STATED THAT THEY INTERPRETED THE SPECIFICATION TO REQUIRE A "TAILSTOCK" BUT THAT THE EQUIPMENT TO BE FURNISHED BY THE LOW BIDDER, DGMG, DID NOT INCLUDE THE TAILSTOCK.

THE ADMINISTRATIVE REPORT REVEALS CERTAIN BACKGROUND INFORMATION SHOWING THAT THE PROCUREMENT ACTION UNDER THE FIRST STEP WAS INITIATED USING A PURCHASE DESCRIPTION WHICH REQUIRED THE FURNISHING OF A TAILSTOCK. DURING THE EVALUATION OF TECHNICAL PROPOSALS UNDER THE FIRST STEP, A DECISION WAS MADE TO INCORPORATE PURCHASE DESCRIPTION WRNE 3416-341, APRIL 10, 1970, IN LIEU OF THE PRIOR PURCHASE DESCRIPTION. SEE B-170107, SEPTEMBER 16, 1970. IT IS EXPLAINED THAT, AMONG OTHER CONSIDERATIONS, IT WAS THE INTENT OF THE ACTIVITY PREPARING WRNE 3416-341 TO PERMIT, BUT NOT REQUIRE, THE TAILSTOCK FEATURE.

SPECIFICATION WRNE 3416-341, UNDER A HEADING ENTITLED "DATA SHEET" (PAGE 12 OF THE SPECIFICATION), READS AS FOLLOWS: "DISTANCE BETWEEN CENTERS WITH TAILSTOCK FLUSH WITH END OF BED) (MIN.) 54" ". THE LOW BIDDER'S TECHNICAL PROPOSAL DID NOT CONTEMPLATE FURNISHING A TAILSTOCK, BUT LODGE AND SHIPLEY INTERPRETED THE SPECIFICATION AS REQUIRING THIS FEATURE. THE FOLLOWING STATEMENT APPEARED IN LODGE AND SHIPLEY'S STEP ONE TECHNICAL PROPOSAL CORRESPONDENCE: "THE TECHNICAL SPECS, PAGE 12, PAR. 3.33 UNDER REFERENCE DATA SHEET, INDICATES DISTANCE BETWEEN CENTERS WITH TAILSTOCK FLUSH WITH END OF BED MINIMUM 54". THIS MEANS THAT THE N/C LATHE MUST BE EQUIPPED WITH A TAILSTOCK AND CAPABLE TO TURNING OPERATIONS WITH THE WORKPIECE SUPPORTED ON THE TAILSTOCK CENTER." IN VIEW OF THE ABOVE, IT WAS CONCLUDED BY THE CONTRACTING OFFICER THAT THE SPECIFICATION WAS AMBIGUOUS AND THAT CANCELLATION PURSUANT TO ASPR 2-404.1(B)(I) WAS APPROPRIATE.

YOU CONTEND BASICALLY THAT YOUR TECHNICAL PROPOSAL WAS ACCEPTED IN STEP ONE OF THIS TWO STEP PROCUREMENT; YOU SUBMITTED THE LOW BID IN RESPONSE TO STEP TWO; THE CANCELLATION WAS CAUSED BY A THREATENED PROTEST; AND THE SPECIFICATION IS NOT AMBIGUOUS AS CLAIMED BY THE CONTRACTING OFFICER.

UNDER 10 U.S.C. 2305(B), THE AIR FORCE WAS REQUIRED TO INCLUDE IN THE INVITATION SPECIFICATIONS WHICH WERE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE TO PERMIT FULL AND FREE COMPETITION. THE RECORD ESTABLISHES THAT WHILE THE AIR FORCE INTENDED TO SOLICIT BIDS ON EQUIPMENT WITH OR WITHOUT A TAILSTOCK, LODGE AND SHIPLEY INTERPRETED THE LANGUAGE OF WRNE 3416-341, REFERENCING THE 54-INCH DISTANCE BETWEEN CENTERS WITH TAILSTOCK FLUSH WITH THE END OF BED, AS A REQUIREMENT FOR A TAILSTOCK. FURTHERMORE, IT IS REPORTED THAT SOME OF THE OTHER BIDDERS MAY HAVE BEEN SIMILARLY MISLED BY THE SPECIFICATION. UNDER THE CIRCUMSTANCES, WE THINK THE CANCELLATION ACTION WAS PROPER.

AS TO THE EFFECT OF YOUR STATUS AS LOW BIDDER UNDER THE DEFECTIVE INVITATION, YOUR ATTENTION IS DIRECTED TO THE PROVISIONS OF PARAGRAPH C 10(B) OF THE TERMS AND CONDITIONS OF THE INVITATION RESERVING TO THE GOVERNMENT THE RIGHT TO REJECT ANY AND ALL BIDS. A REQUEST FOR BIDS OR OFFERS DOES NOT IMPART ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, AND A CONTRACTING OFFICER IS NOT BOUND TO ACCEPT A BID WHERE HE DETERMINES THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND READVERTISEMENT OF A PROCUREMENT UNDER SPECIFICATIONS STATING THE GOVERNMENT'S NEEDS MORE ACCURATELY. 17 COMP. GEN. 554 (1938), AND COURT CASES CITED THEREIN.

ACCORDINGLY, WE SEE NO JUSTIFIABLE BASIS ON WHICH TO QUESTION THE ACTION BY AIR FORCE IN THIS INSTANCE, AND YOUR PROTEST MUST BE DENIED.