B-177349, APR 4, 1973

B-177349, APR 4, 1973

BID PROTEST - IFB CANCELLATION - PROTEST AGAINST IMPROPRIETIES APPARENT PRIOR TO BID OPENING DECISION DENYING THE PROTEST OF HLC MANUFACTURING COMPANY, INC. AGAINST REJECTION OF ITS BID UNDER ONE IFB AND AGAINST ALLEGED RESTRICTIVE AND DEFECTIVE SPECIFICATIONS IN ANOTHER IFB BOTH ISSUED BY THE U.S. NAVAL AMMUNITION DEPOT, CRANE, IND. FOR A MICROPHOTOGRAPHY SYSTEM. A DETERMINATION BY THE CONTRACTING OFFICER THAT THE BIDDING HAS NOT FURNISHED SUFFICIENT COMPETITION TO INSURE A REASONABLE PRICE AND TO REVISE THE SPECIFICATIONS TO GENERATE MORE COMPETITION IS A REASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION JUSTIFYING CANCELLATION OF AN IFB AS BEING IN THE GOVERNMENT'S BEST INTEREST. SEE 50 COMP. GEN. 177 (1970). SINCE THE ORIGINAL IFB WAS PROPERLY CANCELLED, HLC'S PROTEST AGAINST REJECTION OF ITS BID THEREUNDER IS MERELY ACADEMIC. ALSO, A PROTEST BASED UPON ALLEGED IMPROPRIETIES IN AN IFB WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING. 4 CFR 20.2.

TO HLC MANUFACTURING COMPANY, INCORPORATED:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 16, 1973, AND PRIOR CORRESPONDENCE, PROTESTING BOTH THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. N00164-73-B-0025, ISSUED AUGUST 3, 1972, AND ALLEGED RESTRICTIVE AND DEFECTIVE SPECIFICATIONS UNDER IFB NO. N00164-73-B-0068, ISSUED OCTOBER 31, 1972, BY THE UNITED STATES NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

IFB NO. N00164-73-B-0025 SOLICITED BIDS FOR A MICROPHOTOGRAPHY SYSTEM AND RELATED DATA. ALTHOUGH 10 FIRMS WERE SOLICITED, ONLY TWO BIDS WERE RECEIVED. R.W. BORROWDALE COMPANY (BORROWDALE), SUBMITTED THE LOW BID AT $24,470, AND YOUR BID PRICE WAS $29,640. THE BORROWDALE BID WAS REJECTED FOR NONCOMPLIANCE WITH THE TECHNICAL SPECIFICATIONS. HOWEVER, IT IS REPORTED THAT IT WAS DETERMINED THAT BORROWDALE'S SYSTEM WOULD MEET THE NEEDS OF THE REQUIRING ACTIVITY. ALTHOUGH YOUR BID WAS DETERMINED TECHNICALLY RESPONSIVE, THE CONTRACTING OFFICER CONCLUDED THAT IT WAS AMBIGUOUS WITH RESPECT TO COMPLIANCE WITH THE DELIVERY SCHEDULE AND REJECTED IT FOR THAT REASON. YOU PROTESTED THE REJECTION OF YOUR BID, BUT PRIOR TO THE RESOLUTION OF THE PROTEST THE IFB WAS CANCELLED DUE TO CHANGES IN THE TECHNICAL SPECIFICATIONS AND DUE TO A LACK OF COMPETITION.

THE REQUIREMENT WAS READVERTISED UNDER IFB NO. N00164-73-B-0068, ISSUED ON OCTOBER 31, 1972. BIDS WERE OPENED NOVEMBER 16, 1972, AND YOU AND BORROWDALE WERE AGAIN THE ONLY BIDDERS, AND BOTH BIDS WERE DETERMINED RESPONSIVE TO THE IFB CONTAINING REVISED SPECIFICATIONS. BORROWDALE BID THE SAME PRICE ($24,470) AS UNDER THE CANCELLED IFB AND YOU SUBMITTED A BID PRICE OF $28,910. ON FEBRUARY 16, 1973, YOU PROTESTED AN AWARD TO BORROWDALE ON THE BASIS THAT THE SECOND IFB'S SPECIFICATIONS WERE RESTRICTIVE AND DEFECTIVE.

CONCERNING THE CANCELLATION OF THE ORIGINAL IFB, THIS OFFICE HAS HELD THAT A DETERMINATION BY THE CONTRACTING OFFICER THAT THE BIDDING HAS NOT FURNISHED SUFFICIENT COMPETITION TO INSURE A REASONABLE PRICE AND TO REVISE THE SPECIFICATIONS TO GENERATE MORE COMPETITION IS A REASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION JUSTIFYING CANCELLATION OF AN IFB AS BEING IN THE BEST INTEREST OF THE GOVERNMENT. SEE 50 COMP. GEN. 177 (1970); 46 COMP. GEN. 360 (1968). SINCE THE ORIGINAL IFB WAS PROPERLY CANCELLED, THE PROTEST AGAINST REJECTION OF YOUR BID THEREUNDER HAS BECOME ACADEMIC.

AS NOTED ABOVE, IFB NO. N00164-73-B-0068 WAS ISSUED ON OCTOBER 31, 1972, AND BIDS WERE OPENED NOVEMBER 16, 1972. IT WAS NOT UNTIL FEBRUARY 16, 1973, THAT YOU PROTESTED THAT THE SPECIFICATIONS WERE RESTRICTIVE AND DEFECTIVE. THE BID PROTEST RULES AND REGULATIONS OF THIS OFFICE REQUIRE THAT A PROTEST, BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING, BE FILED PRIOR TO BID OPENING. TITLE 4, CODE OF FEDERAL REGULATIONS, SECTION 20.2. ACCORDINGLY, YOUR PROTEST UNDER THIS SOLICITATION MUST BE REJECTED AS UNTIMELY.