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INC: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF FEBRUARY 12. WAS ISSUED ON DECEMBER 11. PROSPECTIVE BIDDERS WERE ADVISED THAT SPECIFICATIONS AND OTHER BIDDING DATA AND INFORMATION WERE AVAILABLE ON APPLICATION AND THAT BIDS WERE TO BE OPENED AT 2:30 P.M. BIDS WERE OPENED ON THE APPROPRIATE DATE AND YOUR FIRM SUBMITTED THE LOW BID OF $270. CONTACTED THE SOUTHEASTERN DIVISION OF NAVFAC TO ADVISE IT THAT THE PLANS ON WHICH BIDS WERE TO BE BASED WERE IN ERROR IN THAT THEY INDICATED THE DEPTH OF THE PAVEMENT TO BE CUT FOR THE INSTALLATION OF THE LIGHTING SYSTEM TO BE 1 INCH WHEN. THE DEPTH WAS 7 TO 9 INCHES. THE ERROR IN THE PLANS WAS CONFIRMED AND IT WAS THEN DECIDED TO REJECT ALL BIDS PURSUANT TO PARAGRAPH 2-404.1 (B) (I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES FOR THE REJECTION OF BIDS WHEN INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION.

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B-166173, APR. 1, 1969

TO SOUTHEASTERN CONTROL AND CABLE TESTING, INC:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF FEBRUARY 12, 1969, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. N62467-67-C 0599, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. N62467-67 C-0599, ISSUED BY THE SOUTHEAST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), FOR THE PROCUREMENT OF AN AIRFIELD LIGHTING SYSTEM FOR THE WHITING FIELD NAVAL AIR STATION, MILTON, FLORIDA.

THE INVITATION FOR BIDS, A 100-PERCENT SMALL BUSINESS SET-ASIDE, WAS ISSUED ON DECEMBER 11, 1968. PROSPECTIVE BIDDERS WERE ADVISED THAT SPECIFICATIONS AND OTHER BIDDING DATA AND INFORMATION WERE AVAILABLE ON APPLICATION AND THAT BIDS WERE TO BE OPENED AT 2:30 P.M. ON JANUARY 23, 1969. BIDS WERE OPENED ON THE APPROPRIATE DATE AND YOUR FIRM SUBMITTED THE LOW BID OF $270,913. HOWEVER, ON THE MORNING OF JANUARY 23, BUT PRIOR TO THE OPENING OF BIDS, WEBB ELECTRIC CO., INC. (WEBB), CONTACTED THE SOUTHEASTERN DIVISION OF NAVFAC TO ADVISE IT THAT THE PLANS ON WHICH BIDS WERE TO BE BASED WERE IN ERROR IN THAT THEY INDICATED THE DEPTH OF THE PAVEMENT TO BE CUT FOR THE INSTALLATION OF THE LIGHTING SYSTEM TO BE 1 INCH WHEN, IN FACT, THE DEPTH WAS 7 TO 9 INCHES. AFTER BID OPENING, THE ERROR IN THE PLANS WAS CONFIRMED AND IT WAS THEN DECIDED TO REJECT ALL BIDS PURSUANT TO PARAGRAPH 2-404.1 (B) (I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES FOR THE REJECTION OF BIDS WHEN INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION.

YOUR LETTER PROTESTS THE REJECTION OF THE BIDS STATING THAT YOUR COMPANY CONDUCTED AN ONSITE INSPECTION OF THE AIRFIELD; THAT YOUR BID WAS BASED ON THE ACTUAL THICKNESS OF THE SURFACE TO BE CUT RATHER THAN THE ERRONEOUS THICKNESS SHOWN IN THE PLANS; AND THAT YOUR COMPANY STANDS READY TO PERFORM THE CONTRACT AT ITS STATED BID PRICE REGARDLESS OF THE ERROR IN THE SPECIFICATIONS. YOU FURTHER PROTEST THE ACTION BY WEBB IN COMPLAINING AFTER BID OPENING THAT THE PLANS WERE IN ERROR BECAUSE THIS ALLOWED IT TO DETERMINE WHETHER OR NOT IT WAS THE LOW BIDDER BEFORE REGISTERING ITS COMPLAINT AND BY SO DOING IS RECEIVING "A SECOND BIT AT THE APPLE" IN ASKING THAT THE CONTRACT BE READVERTISED.

IN THIS CASE, THE PLANS INCORPORATED BY REFERENCE IN THE INVITATION CALLED FOR BIDDERS TO USE AS ONE ITEM IN DETERMINING THEIR BID PRICES A PAVEMENT THICKNESS OF 1 INCH. HOWEVER, IT IS CLEAR THAT AT LEAST TWO OF THE BIDDERS KNEW THE ACTUAL THICKNESS OF THE PAVEMENT TO BE 7 TO 9 INCHES AND SUBMITTED THEIR BIDS ON THAT BASIS. AS A RESULT OF THE ERROR IN THE SPECIFICATIONS, IT IS UNCLEAR WHETHER THE REMAINING BIDDERS WERE USING THE ACTUAL PAVEMENT THICKNESS OR THAT SHOWN IN THE PLANS. THEREFORE, IT SEEMS HIGHLY IMPROBABLE THAT ALL BIDDERS WERE COMPETING ON AN EQUAL BASIS. BECAUSE IT IS IN THE BEST INTEREST OF THE GOVERNMENT TO BE FAIR TO ALL BIDDERS AND TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, IT IS INCUMBENT UPON THE PROCURING AGENCY TO MAKE CERTAIN THAT ALL BIDDERS ARE COMPETING ON A COMMON BASIS. IN OUR DECISION B-14888, AUGUST 7, 1962, IT WAS HELD:

"* * * SINCE PROSPECTIVE SUPPLIERS OF THE EQUIPMENT WERE NOT AFFORDED A COMMON GROUND UPON WHICH TO COMPUTE THEIR OFFERS WE CONCUR WITH THE CONCLUSIONS OF THE PROCUREMENT OFFICIALS THAT THE INVITATION WAS FATALLY DEFECTIVE AND CANCELLATION THEREOF WAS PROPER.' SEE, ALSO, B-163662, APRIL 2, 1968.

WITH REGARD TO YOUR STATEMENT THAT WEBB PROTESTED AFTER BID OPENING, THE RECORD SHOWS THAT WEBB DID CONTACT PERSONNEL OF THE SOUTHEAST DIVISION OF NAVFAC ON THE MORNING PRIOR TO THE BID OPENING CONCERNING THE ERROR IN THE PLANS. THEREAFTER, WEBB PROTESTED BY LETTER OF JANUARY 24 TO THE PROCURING AGENCY. THEREFORE, WEBB WAS NOT TRYING TO TAKE ANY UNDUE ADVANTAGE TO THE PREJUDICE OF OTHER BIDDERS. HOWEVER, THE EXACT TIME OF WEBB'S OBJECTION TO THE PLANS WOULD SEEM TO BE IMMATERIAL SINCE A DEFECTIVE INVITATION MUST BE CANCELED REGARDLESS OF THE REGRETTABLE EFFECT ON ALL BIDDERS. IN 41 COMP. GEN. 76 WE HELD:

"IT IS UNFORTUNATE THAT THE BIDDERS HAVE IN GOOD FAITH PREPARED BIDS WHICH NOW HAVE BEEN EXPOSED. HOWEVER, THE GOOD FAITH OF BIDDERS CANNOT RENDER A DEFECTIVE INVITATION VALID.'

AS STATED IN THE ABOVE DECISION, NEEDLESS DISCLOSURE OF BID PRICES IS UNFORTUNATE AND IS TO BE AVOIDED WHEREVER POSSIBLE. IN THAT REGARD, IT WOULD HAVE BEEN PREFERABLE TO POSTPONE THE TIME OF BID OPENING SO AS TO PERMIT THE ISSUANCE OF AN AMENDMENT TO THE INVITATION TO CORRECT THE ERROR IN THE PLANS. ASPR 2-404.1 (A) STATES IN PERTINENT PART:

"* * * EVERY EFFORT SHALL BE MADE TO ANTICIPATE CHANGES IN A REQUIREMENT PRIOR TO THE DATE OF OPENING AND TO NOTIFY ALL PROSPECTIVE BIDDERS OF ANY RESULTING MODIFICATION OR CANCELLATION, THEREBY PERMITTING BIDDERS TO CHANGE THEIR BIDS AND PREVENTING THE UNNECESSARY EXPOSURE OF BID PRICES.

IT IS A WELL-ESTABLISHED RULE THAT BIDS ARE TO BE REJECTED AFTER OPENING ONLY FOR THE MOST COGENT AND COMPELLING REASONS. B-140452, NOVEMBER 9, 1959; B-153229, FEBRUARY 5, 1964. HOWEVER, WE CANNOT SAY THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER TO REJECT ALL BIDS WAS PATENTLY IMPROPER UNDER ASPR 2-404.1, ESPECIALLY SINCE THIS RIGHT WAS RESERVED TO THE GOVERNMENT BY THE INVITATION ITSELF AND BY 10 U.S.C. 2305 (C).

ACCORDINGLY, AND SINCE THERE IS NOTHING OF RECORD WHICH INDICATES THAT THE REJECTION OF ALL BIDS CONSTITUTED AN ABUSE OF DISCRETION, WE MUST CONCLUDE THAT SUCH ACTION IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

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