B-161374, JUN. 8, 1967

B-161374, JUN. 8, 1967

TO CAPITAL CONTROLS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO COPY OF YOUR LETTER DATED APRIL 24, 1967, WITH ENCLOSURES, TO THE DEFENSE SUPPLY AGENCY, PROTESTING THAT AN AWARD WAS NOT MADE TO YOUR COMPANY FOR ITEM NO. 1 UNDER INVITATION FOR BIDS DSA- 700-67-B-3982, NOTWITHSTANDING THAT YOU WERE THE LOW BIDDER ON THE ITEM.

THE INVITATION WAS ISSUED FEBRUARY 16, 1967, AND REQUESTED BIDS ON TWO CHLORINATORS. ITEM NO. 1 COVERED A CHLORINATOR FOR AN OFFICER'S CLUB POOL AND ITEM NO. 2 COVERED A CHLORINATOR FOR A SEWAGE PLANT. FIVE BIDS WERE RECEIVED ON ITEM NO. 1 AND FOUR WERE RECEIVED ON ITEM NO. 2. YOUR COMPANY SUBMITTED THE LOWEST BID ON ITEM NO. 1 AT $650, HOWEVER, YOU DID NOT BID ON ITEM NO. 2 AS TO WHICH THE FISCHER AND PORTER COMPANY WAS THE LOWEST BIDDER AT $1,962.

IT IS REPORTED THAT THE USING ACTIVITY HAD BEEN ADVISED INITIALLY THAT REPAIR PARTS WERE NOT AVAILABLE TO REPAIR THE CHLORINATOR WHICH WAS INSTALLED IN THE CLUB POOL IN 1960. SUBSEQUENT TO BID OPENING, HOWEVER, IT WAS ASCERTAINED THAT THE CHLORINATOR FOR THE CLUB POOL WAS REPAIRABLE AT A COST OF $122. THEREFORE, ITEM NO. 1 WAS DELETED FROM THE PROCUREMENT. ITEM NO. 2 WAS AWARDED TO FISCHER AND PORTER ON APRIL 19, 1967, AT ITS BID PRICE.

IT IS REPORTED THAT THROUGH ADMINISTRATIVE ERROR, YOU WERE NOT PROPERLY ADVISED AS TO THE FACT THAT NO REQUIREMENT EXISTED FOR ITEM NO. 1 OF THE INVITATION. THE INITIAL NOTICE TO YOU INDICATED THAT ITEM NO. 1 WAS CANCELLED AS THE SUPPLIES WERE NO LONGER REQUIRED, BUT THE SECOND NOTICE ADVISED YOU THAT YOUR BID WAS NOT ACCEPTED BECAUSE IT WAS NOT LOW. THE SECOND NOTICE WAS ISSUED TO YOU IN ERROR INASMUCH AS IT HAD REFERENCE TO ITEM NO. 2 ON WHICH YOU DID NOT SUBMIT A BID. HOWEVER MISLEADING THESE ACTIONS MAY HAVE BEEN, THE LEGALITY OF THE AWARD MADE IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

THE INVITATION INCORPORATED BY REFERENCE TO THE BIDDING INSTRUCTIONS AND CONDITIONS OF STANDARD FORM 33-A, ARTICLE 10 OF WHICH PROVIDES THAT THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNDER THIS AUTHORITY, THE PROCUREMENT AGENCY PROPERLY DELETED ITEM NO. 1 FROM ANY CONSIDERATION FOR AWARD. IT WOULD HAVE BEEN PATENTLY INCONSISTENT WITH THE PUBLIC INTEREST TO HAVE MADE AN AWARD FOR AN ITEM WHICH WAS DETERMINED TO BE UNNECESSARY ON THE BASIS OF SUBSEQUENT EVENTS WHICH CLEARLY DEMONSTRATED ITS NONNECESSITY. WHILE WE REGRET THAT YOU WERE MISINFORMED WITH REFERENCE TO YOUR BID, WE FIND NO LEGAL BASIS TO OBJECT TO THE ACTION TAKEN BY THE PROCUREMENT AGENCY. ACCORDINGLY, YOUR PROTEST IS DENIED.