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TO SHANNON LUMINOUS MATERIALS COMPANY: FURTHER REFERENCE IS MADE TO LETTER OF MARCH 25. IT WAS DETERMINED THAT THE INVITATION WAS AMBIGUOUS. THE INVITATION WAS CANCELLED AND THE BIDDERS WERE SO ADVISED. INVITATION FOR BIDS NO. 36-600-63-547 WAS ISSUED FOR THE PURPOSE OF CLARIFYING THE AMBIGUITIES. THE REFERRED-TO AMBIGUITIES ARE REPORTED TO BE AS FOLLOWS: SPECIFICATION MIL-I-25135C/ASG). IS REPORTED TO BE APPLICABLE TO THE SUPPLIES CALLED FOR UNDER INVITATION NO. 36-600-63-175. WE ARE INFORMED THAT THERE ARE INSTANCES OF DIFFERENT MANUFACTURERS SUBMITTING LOW BIDS ON DIFFERENT ITEMS WITHIN THE SAME FAMILY OF MATERIALS. WOULD HAVE PERMITTED AWARDS TO THESE MANUFACTURERS FOR DIFFERENT ITEMS WITHIN THE SAME FAMILY.

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B-140127, B-144759, B-151160, OCT 28, 1963

TO SHANNON LUMINOUS MATERIALS COMPANY:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 25, 1963, WRITTEN IN YOUR BEHALF BY BERNARD L. SHAPIRO, ESQUIRE, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. 36-600-63-175, ISSUED BY THE DEPARTMENT OF THE AIR FORCE.

AN EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT THE ABOVE-MENTIONED INVITATION SOLICITED BIDS FOR THE FURNISHING OF PENETRANT INSPECTION MATERIALS FOR A PERIOD OF ONE YEAR ON A CALL BASIS. FOUR OF THE 16 FIRMS FURNISHED INVITATIONS SUBMITTED BIDS. DURING THE PROCESSING OF THE PROPOSED CONTRACT RESULTING FROM THIS INVITATION, IT WAS DETERMINED THAT THE INVITATION WAS AMBIGUOUS. ACCORDINGLY, THE INVITATION WAS CANCELLED AND THE BIDDERS WERE SO ADVISED. THEREAFTER, INVITATION FOR BIDS NO. 36-600-63-547 WAS ISSUED FOR THE PURPOSE OF CLARIFYING THE AMBIGUITIES. THE REFERRED-TO AMBIGUITIES ARE REPORTED TO BE AS FOLLOWS:

SPECIFICATION MIL-I-25135C/ASG), DATED OCTOBER 21, 1959, AS AMENDED, IS REPORTED TO BE APPLICABLE TO THE SUPPLIES CALLED FOR UNDER INVITATION NO. 36-600-63-175. IN ORDER TO INSURE COMPATIBILITY OF INSPECTION MATERIALS, THE SPECIFICATION REQUIRES THAT THE SUPPLIES WITHIN A SINGLE FAMILY OF PENETRANT INSPECTION MATERIALS BE FURNISHED BY ONE MANUFACTURER. THE SCHEDULE OF THE INVITATION DID NOT CLEARLY REFLECT THIS REQUIREMENT, NOR DID THE INVITATION CONTAIN A PROVISION ADVISING PROSPECTIVE BIDDERS THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE LOWEST TOTAL PRICE FOR ALL ITEMS WITHIN A SINGLE FAMILY GROUP. AS A RESULT, WE ARE INFORMED THAT THERE ARE INSTANCES OF DIFFERENT MANUFACTURERS SUBMITTING LOW BIDS ON DIFFERENT ITEMS WITHIN THE SAME FAMILY OF MATERIALS, AND DESPITE THE REQUIREMENTS OF THE SPECIFICATIONS, THE INVITATION, ON ITS FACE, WOULD HAVE PERMITTED AWARDS TO THESE MANUFACTURERS FOR DIFFERENT ITEMS WITHIN THE SAME FAMILY.

IN ADDITION, THE DESCRIPTION OF ITEMS 2, 4, 8, AND 9 OF THE SCHEDULE, WHICH ARE BASIC KITS OF PENETRANT MATERIALS, WAS WRITTEN SO AS TO IMPLY THAT BIDDERS HAVE A CHOICE OF SUPPLYING EITHER OF TWO TYPES OF DEVELOPER (DRY OR WET IN A DRY FORM) WITH THE KITS. CONSEQUENTLY, WHERE THE INVITATION SCHEDULE SOLICITED PRICES FOR REPLACEMENT MATERIALS FOR THE ABOVE-MENTIONED KITS, IT IS REPORTED THAT A BIDDER MIGHT BE JUSTIFIED IN SUBMITTING A PRICE ONLY ON THAT TYPE OF DEVELOPER THAT HE HAD CHOSEN IN COMPUTING HIS BID ON THE BASIC KIT. HOWEVER, IT IS STATED THAT THE GOVERNMENT'S INTENT, ALTHOUGH NOT SPELLED OUT WITH SUFFICIENT CLARITY IN THE INVITATION, WAS THAT BIDDERS WOULD SUBMIT PRICES FOR KITS CONTAINING EACH TYPE OF DEVELOPER, AND PRICES FOR REPLACEMENTS FOR EACH TYPE OF DEVELOPER, AND THE GOVERNMENT WOULD SPECIFY THE TYPE OF DEVELOPER DESIRED WHEN PLACING AN ORDER FOR KITS AND REPLACEMENTS UNDER THE CONTRACT. VIEW OF THESE REPORTED DISCREPANCIES IT WAS DETERMINED BY THE PROCURING ACTIVITY THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND CANCEL THE INVITATION UNDER THE AUTHORITY CONTAINED IN SECTION 8/B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS.

AN INVITATION TO BID ON GOVERNMENT PROCUREMENTS DOES NOT IMPOSE UPON THE GOVERNMENT ANY BINDING OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS HAVE HELD REPEATEDLY THAT, IRRESPECTIVE OF ANY RESERVATION ON THE PART OF THE GOVERNMENT TO REJECT ANY AND ALL BIDS, A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BID. 17 COMP. GEN. 554; 26 ID. 49; PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, 6 F.SUPP. 761; SCOTT V. UNITED STATES, 44 CT.CLS. 524; COLORADO PAVING CO. V. MURPHY, 78 F. 28. THE DUTY OF MAKING SUCH DETERMINATIONS LIES WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY, AND IN THE ABSENCE OF CLEAR PROOF OF ABUSE OF THEIR DISCRETIONARY POWERS IN THAT REGARD THIS OFFICE WILL NOT UNDERTAKE TO INTERFERE WITH THE ACTION BASED THEREON.

IN THE INSTANT CASE, FOR THE REASONS STATED ABOVE, THE ADMINISTRATIVE AGENCY DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND TO READVERTISE ON THE BASIS OF A REVISED INVITATION. THE ACTION THUS TAKEN WAS IN ACCORDANCE WITH THE RIGHT RESERVED BY THE GOVERNMENT, AND WE FIND NOTHING IN THE RECORD TO INDICATE BAD FAITH OR ABUSE OF ADMINISTRATIVE DISCRETION.

WE THEREFORE CONCLUDE, ON THE RECORD BEFORE US, THAT YOUR PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY OUR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN.

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