B-142767, JUNE 13, 1960, 39 COMP. GEN. 834

B-142767, JUNE 13, 1960, 39 COMP. GEN. 834

BIDS - DISCARDING ALL BIDS - REINSTATEMENT OF CANCELED INVITATION AND ORIGINAL BIDS THE REINSTATEMENT OF A CANCELED INVITATION WHICH GAVE BIDDERS AN OPTION TO SUPPLY EITHER ONE OF TWO COLORS OF AN ITEM, EVEN THOUGH THE PROCUREMENT AGENCY WANTED THE ITEM IN ONLY ONE COLOR, AND THE CONSIDERATION OF ALL BIDS, EXCEPT THE LOWEST BID WHICH WAS WITHDRAWN PRIOR TO OPENING, ON THE BASIS THAT THE BIDDERS WOULD AGREE TO FURNISH ONLY THE COLOR WANTED AT THE ORIGINAL BID PRICES WOULD NOT BE IMPROPER, THE ONLY BIDDER WHO APPARENTLY COULD BE PREJUDICED BY SUCH ACTION WOULD BE THE BIDDER WHO REQUESTED WITHDRAWAL PRIOR TO THE ORIGINAL BID OPENING.

TO THE SECRETARY OF THE AIR FORCE, JUNE 13, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 3, 1960, FROM YOUR ASSISTANT DEPUTY FOR PROCUREMENT AND PRODUCTION, REQUESTING A DECISION AS TO WHETHER THERE WOULD BE ANY OBJECTION TO THE RESCISSION OF THE CANCELLATION OF ALL BIDS RECEIVED UNDER INVITATION FOR BIDS NO. 36-600 60-294, OPENED ON APRIL 14, 1960, AT MIDDLETOWN AIR MATERIAL AREA, AND AWARD OF THE CONTRACT TO THE LOWEST BIDDERS.

THE INVITATION, AS MODIFIED BY AMENDMENT NO. 4, ISSUED APRIL 4, 1960, REQUESTED BIDS FOR FURNISHING 925 PARACHUTES OF A CERTAIN TYPE AND DESCRIPTION UNDER ITEM 1, AND 77 PARACHUTES OF A SLIGHTLY DIFFERENT DESCRIPTION UNDER ITEM 2, ALL IN ACCORDANCE WITH BOEING AIRPLANE COMPANY DRAWINGS 25-5865, REVISION E, AND 25-5869, REVISION D. IN ADDITION THERETO, A LIKE NUMBER OF PARACHUTES WAS SET ASIDE SOLELY FOR AWARD TO SMALL BUSINESS FIRMS. THE INVITATION GAVE NOTICE OF THE SET ASIDE AND ADVISED THAT A CONTRACT FOR THE SET-ASIDE PORTION WOULD BE NEGOTIATED, IN ACCORDANCE WITH NORMAL PROCEDURES AND CONDITIONS, WITH RESPONSIBLE SMALL BUSINESS CONCERNS WHICH SUBMITTED RESPONSIVE BIDS ON THE ADVERTISED PORTION. IT FURTHER PROVIDED THAT IN THE EVENT A SMALL BUSINESS FIRM WAS AWARDED THE ADVERTISED PORTION OF THE PROCUREMENT, SAID FIRM WOULD NOT BE ELIGIBLE TO PARTICIPATE IN ANY NEGOTIATION FOR ANY PORTION OF THE SET- ASIDE.

EIGHT BIDS WERE RECEIVED, 5 FROM SMALL BUSINESS CONCERNS AND 3 FROM LARGE BUSINESSES. THE LOWEST BID WAS SUBMITTED BY JAYVAL COMPANY OF NEW MEXICO, A SMALL BUSINESS CONCERN, WHICH BID A UNIT PRICE OF $820 UNDER ITEM 1 AND $845 UNDER ITEM 2. HOWEVER, THIS COMPANY WITHDREW ITS BID BY WIRE WHICH WAS RECEIVED AT OLMSTED AIR FORCE BASE PRIOR TO THE OPENING OF BIDS, BUT WAS DELAYED AT THE BASE AND WAS NOT DELIVERED TO THE CONTRACTING OFFICER UNTIL AFTER THE BID OPENING HAD TAKEN PLACE. IT WAS DETERMINED THAT THE TELEGRAM OF WITHDRAWAL WAS DISPATCHED ON TIME AND THAT THE FAILURE TO BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE BID OPENING WAS DUE TO A DELAY AT THE BASE FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. ACCORDINGLY, THIS BID COULD NOT BE CONSIDERED FOR AWARD AND WAS DISREGARDED.

THE LOWEST TIMELY BID WAS SUBMITTED BY SECURITY PARACHUTE COMPANY, SAN LEANDRO, CALIFORNIA, A SMALL BUSINESS CONCERN, WHICH BID NET UNIT PRICES OF $965.20 UNDER ITEM 1 AND $988.20 UNDER ITEM 2. THE SECOND LOWEST BID WAS SUBMITTED BY PIONEER PARACHUTE COMPANY, MANCHESTER, CONNECTICUT, A LARGE BUSINESS, WHICH BID NET UNIT PRICES OF $1,058 UNDER ITEM 1 AND $1,080 UNDER ITEM 2. THE THIRD LOWEST PRICE WAS SUBMITTED BY IRVING AIR CHUTE COMPANY, LEXINGTON, KENTUCKY, A SMALL BUSINESS CONCERN, WHICH BID NET UNIT PRICES OF $1,060.54 UNDER ITEM 1 AND $1,080.34 UNDER ITEM 2.

IN A TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER AFTER THE OPENING OF THE BIDS, THE PRESIDENT OF JAYVAL COMPANY STATED THAT HE WITHDREW HIS BID BECAUSE HE FEARED THAT HE WOULD BE REQUIRED TO FURNISH AN ALL YELLOW PARACHUTE DUE TO AN AMBIGUOUS PROVISION IN BOEING DRAWING NO. 25-5858, REVISION C, WITH RESPECT TO THE COLOR OF THE RIBBON TO BE USED IN THE FABRICATION OF THE PARACHUTE. THIS DRAWING PERTAINS TO THE MAIN CHUTE -ASSEMBLY AND IS INCORPORATED BY REFERENCE IN BOEING DRAWING NO. 25-5865 WHICH IS REFERRED TO IN THE INVITATION FOR BIDS. THE FOLLOWING NOTE APPEARS ON DRAWING NO. 25-5868:

FLAG 501. .625W NYLON RIBBON 90-LBS. T.S., MIL-T-5608E, AMENDMENT II, TYPE III, CLASS "C," PIECE DYED YELLOW AF COLOR 1365 OPTIONAL AND PREFERRED TO NATURAL COLOR.

THE JAYVAL COMPANY STATED THAT IT HAD COMPUTED ITS BID ON THE BASIS OF FURNISHING WHITE OR NATURAL COLOR RIBBON AND WITHDREW ITS BID WHEN IT BECAME APPREHENSIVE THAT BECAUSE OF THE ABOVE-QUOTED PROVISIONS OF THE DRAWING AND THE SPECIFICATION IT COULD BE REQUIRED TO FURNISH AN ALL YELLOW RIBBON PARACHUTE WHICH WOULD BE MORE EXPENSIVE.

ON RECEIPT OF THIS INFORMATION, THE COGNIZANT AIR FORCE ENGINEERING AND PROCUREMENT PERSONNEL REVIEWED THE DRAWINGS AND SPECIFICATIONS AND CONCLUDED THAT THE CONTRACTOR COULD FURNISH EITHER NATURAL (WHITE) OR YELLOW VERTICAL RIBBON IN THE FABRICATION OF THE PARACHUTES AND THAT, SINCE THE AIR FORCE REQUIREMENTS CALLED FOR ALL YELLOW PARACHUTES, THE INVITATION DID NOT SET FORTH ACCURATELY THE ACTUAL AIR FORCE REQUIREMENTS. ACCORDINGLY, THE CONTRACTING OFFICER DECIDED TO REJECT ALL BIDS AND READVERTISE THE PROCUREMENT ON THE BASIS OF THE ACTUAL REQUIREMENTS OF THE AIR FORCE FOR AN ALL YELLOW PARACHUTE.

ALL BIDS WERE REJECTED AND THE INVITATION WAS CANCELED ON APRIL 22, 1960. THE PROCUREMENT WAS READVERTISED UNDER INVITATION FOR BIDS NO. 36- 600-491, ISSUED APRIL 26, 1960. THE NEW INVITATION MADE IT CLEAR THAT YELLOW PARACHUTES ARE REQUIRED, AND SET FORTH THE FOLLOWING PROVISION:

BIDDERS ARE CAUTIONED TO BID ON THE COLOR " YELLOW" ONLY. NO OTHER COLOR IS ACCEPTABLE FOR USE ON THE END ITEMS OR ANY COMPONENTS THEREOF IRRESPECTIVE OF ANY OPTION APPEARING ON THE APPLICABLE DRAWINGS OR SPECIFICATIONS.

NO OTHER CHANGES WERE MADE. BIDS UNDER THE NEW INVITATION WERE SCHEDULED TO BE OPENED ON MAY 6, 1960. HOWEVER, THE OPENING OF THE BIDS HAS BEEN DEFERRED INDEFINITELY PENDING THE DISPOSITION OF PROTESTS BY IRVING AIR CHUTE COMPANY, PIONEER PARACHUTE COMPANY, AND SECURITY PARACHUTE COMPANY.

IT IS STATED IN THE LETTER OF THE ASSISTANT DEPUTY FOR PROCUREMENT AND PRODUCTION THAT:

THE LOW BIDDERS HAVE ASKED TO SIGN A CONTRACT FOR YELLOW PARACHUTES AT THE BID PRICES. WE HAVE CAREFULLY REVIEWED THE FACTS AND HAVE CONCLUDED THAT THIS WOULD WORK NO PREJUDICE ON THE RIGHTS OF OTHERS AND THAT IT WOULD, IN FACT, PROMOTE THE INTEGRITY OF THE PUBLIC BIDDING SYSTEM. WE DO NOT FIND THE LANGUAGE OF THE DRAWING AMBIGUOUS. ALL THE BIDDERS HAVE BID ON A EQUAL BASIS AND HAD THE SAME OPTION. VARIOUS ESTIMATES PRICE THE YELLOW CHUTES OF $10 OR MORE IN EXCESS OF THE NATURAL COLOR CHUTES. HOWEVER, THE ELIGIBLE BIDDERS ARE NOT ASKING FOR ANY INCREASE IN PRICE.

IT APPEARS THAT ALL THE ACTIVE MAKERS OF PARACHUTES IN THE COUNTRY HAVE BID. THEIR BIDS HAVE BEEN EXPOSED. BECAUSE OF THESE CIRCUMSTANCES WE FEEL THAT READVERTISING SHOULD BE AVOIDED IF POSSIBLE. BIDS ONCE EXPOSED MAY ONLY BE DISCARDED FOR "COGENT REASONS," MASSMAN CONSTRUCTION V. U.S., 202 C.1CLS. 699, AT 719. DECISIONS OF YOUR OFFICE ADEQUATELY SUPPORT THE RIGHT TO RESCIND A CANCELLATION OF BIDS AND MAKE AN AWARD TO THE ORIGINAL LOWEST BIDDER.

THE PROVISION SET FORTH ON DRAWING NO. 25-5686 APPARENTLY DOES GIVE THE CONTRACTOR THE OPTION OF FURNISHING EITHER YELLOW OR NATURAL VERTICAL RIBBON. HOWEVER, THE DIFFERENCE IN COST IS ONLY APPROXIMATELY $10 PER CHUTE AND THE OPTION WAS AVAILABLE TO ALL BIDDERS. THE ELIGIBLE BIDDERS HAVE STATED THAT THEIR BIDS WERE BASED ON FURNISHING YELLOW RIBBON THROUGHOUT OR THAT THEY WILL FURNISH ALL YELLOW RIBBON AT NO INCREASE IN PRICE. THE ONLY BIDDER WHO APPARENTLY COULD BE PREJUDICED BY AN AWARD ON THE BASIS OF THE PRESENT INVITATION WOULD BE JAYVAL COMPANY AND IT WELL MAY BE THAT THAT COMPANY'S DECISION TO WITHDRAW ITS BID PRIOR TO OPENING WAS NOT BASED SOLELY ON THE PURPORTED AMBIGUITY. IF THAT WERE THE ONLY REASON FOR THE WITHDRAWAL IT WOULD APPEAR THAT THE COMPANY MERELY WOULD HAVE STATED THAT THE BID AS SUBMITTED WAS BASED ON FURNISHING NATURAL VERTICAL RIBBON AND WOULD HAVE GIVEN AN AMOUNT BY WHICH ITS BID WAS TO BE INCREASED IF YELLOW RIBBON WERE REQUIRED.

IN THE CIRCUMSTANCES, WE WILL NOT BE REQUIRED TO OBJECT TO THE REINSTATEMENT OF INVITATION FOR BIDS NO. 36-600-60-294 AND TO AWARDS TO THE LOWEST BIDDERS, PROVIDED DEFINITE BINDING COMMITMENTS FOR YELLOW PARACHUTES ARE OBTAINED ON THE BASIS OF THE PRICES CONTAINED IN THE ORIGINAL BIDS, AS RECOMMENDED.