B-167995, MAR. 10, 1970

B-167995, MAR. 10, 1970

BIDS--DISCARDING ALL BIDS--LOW BID NONRESPONSIVE WHEN LOW BID FOR FLYING SERVICE WAS DETERMINED NONRESPONSIVE FOR LACK OF REQUIRED FEDERAL AVIATION ADMINISTRATION (FAA) CERTIFICATION AND POSSIBLE CONFLICT OF INTEREST STATUTES PRECLUDED AWARD TO SECOND LOW BIDDER, INVITATION WAS CANCELED AND READVERTISED BUT WHILE WAITING GAO DECISION ON ELIGIBILITY OF SECOND LOW BIDDER RECEIVED FAA CERTIFICATION. DUE TO URGENT NEED FOR SERVICE, HOWEVER, AWARD WAS MADE TO LOW BIDDER UNDER READVERTISED PROCUREMENT WHICH GAO WILL NOT QUESTION SINCE CANCELLATION OF INVITATION IS DISCRETIONARY WITH ADMINISTRATION AND SUFFICIENT JUSTIFICATION IS SHOWN FOR DETERMINATION TO CANCEL INVITATION AND BECAUSE ACCEPTABLE BID UNDER SECOND INVITATION WAS LOWER THAN EITHER OF ORIGINAL BIDS REINSTATEMENT OF CANCELED INVITATION WOULD BE INAPPROPRIATE. SEE COMP. GEN. DECS. CITED.

TO LIEUTENANT COLONEL DARRELL S. BASH:

YOUR LETTERS DATED JANUARY 28 AND FEBRUARY 4, 1970, WITH ENCLOSURES, PROTEST THE AWARD BY THE DEPARTMENT OF THE AIR FORCE OF A CONTRACT FOR FLIGHT SERVICES AT BEALE AIR FORCE BASE, CALIFORNIA, TO MID VALLEY FLYING SERVICE, CHICO, CALIFORNIA.

BIDS FOR THE SUBJECT FLIGHT SERVICES WERE INITIALLY SOLICITED UNDER INVITATION FOR BIDS (IFB) NO. F04666-69-B-0973. THE BID OF LAKE ALMANOR AVIATION, SIGNED BY YOU IN YOUR CAPACITY AS PRESIDENT OF THE FIRM, WAS THE SECOND LOWEST OF THE TWO BIDS RECEIVED UNDER THIS INVITATION. BECAUSE THE LOWEST BIDDER UNDER THIS INVITATION WAS DETERMINED TO BE NONRESPONSIVE FOR LACK OF A REQUIRED FEDERAL AVIATION ADMINISTRATION (FAA) CERTIFICATION AND BECAUSE THE CONTRACTING OFFICER ENTERTAINED DOUBTS AS TO YOUR RIGHT TO SIGN LAKE ALMANOR'S BID IN VIEW OF YOUR STATUS AS A RETIRED AIR FORCE OFFICER AND THE PROHIBITIONS AGAINST CERTAIN TRANSACTIONS BETWEEN RETIRED OFFICERS AND THE GOVERNMENT SET OUT AT 37 U.S.C. 801 (C) AND 18 U.S.C. 281, INVITATION 0973 WAS CANCELED. THE PROCUREMENT WAS READVERTISED UNDER IFB NO. F04666-70-B-0119, BUT BEFORE ANY AWARD WAS MADE UNDER THAT INVITATION, AN ADVANCE DECISION WAS REQUESTED OF OUR OFFICE AS TO WHETHER OR NOT THE REFERENCED STATUTES PRECLUDED AWARD TO YOUR FIRM AND IF NOT WHETHER WE WOULD HAVE ANY OBJECTION TO REINSTATEMENT OF THE CANCELED INVITATION. IN ADDITION, AN OPINION ON THIS QUESTION ALSO WAS REQUESTED OF THE ASSISTANT UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF CALIFORNIA.

OUR DECISION OF OCTOBER 3, 1969, B-167995, A COPY OF WHICH WAS PROVIDED YOU BY HEADQUARTERS UNITED STATES AIR FORCE, CONCLUDED THAT 37 U.S.C. 801 (C), WHICH PRECLUDES THE PAYMENT OF RETIRED PAY FOR 3 YEARS AFTER RETIREMENT TO RETIRED OFFICERS OF THE ARMED SERVICES ENGAGED IN THE SALE OF SUPPLIES TO SPECIFIED GOVERNMENT AGENCIES, WOULD NOT BAR THE AWARD OF A CONTRACT TO LAKE ALMANOR UNDER THE CANCELED INVITATION. THE DECISION STATED FURTHER, HOWEVER, THAT A DETERMINATION AS TO THE APPLICABILITY OF 18 U.S.C. 281, CONCERNING THE REPRESENTATION BY RETIRED OFFICERS IN SALES TO THE DEPARTMENT FROM WHICH THE OFFICER RETIRED, SHOULD PROPERLY BE MADE BY THE DEPARTMENT OF JUSTICE AS THAT STATUTE IS A CRIMINAL ONE.

BEFORE OUR OCTOBER 3 DECISION WAS ISSUED AND BEFORE THE POSITION OF THE DEPARTMENT OF JUSTICE HAD BEEN OBTAINED ON THE MATTER OF THE CRIMINAL STATUTE, THE LOW BIDDER UNDER THE CANCELED INVITATION RECEIVED THE REQUIRED FAA CERTIFICATION THEREBY QUALIFYING FOR AWARD UNDER THAT INVITATION IF REINSTATED. ADDITIONALLY, THE LOWEST ACCEPTABLE BID RECEIVED UNDER THE SECOND INVITATION FROM MID VALLEY FLYING SERVICE, AS TO WHICH YOU REPORTEDLY DID NOT SUBMIT A BID, WAS SOME $450 LOWER THAN YOUR BID UNDER THE INITIAL INVITATION AND SOME $67 LOWER THAN THE OTHER BID UNDER THE ORIGINAL INVITATION. FINALLY, THE REQUESTED DEPARTMENT OF JUSTICE POSITION HAD NOT BEEN "AUTHORITATIVELY SETTLED" AS OF THE TIME THE SUBJECT FLYING SERVICES WERE NEEDED. THESE FACTORS LED THE CONTRACTING OFFICER TO THE CONCLUSION THAT AWARD SHOULD BE MADE TO MID VALLEY FLYING SERVICE, THE LOWEST BIDDER UNDER THE SECOND INVITATION, AND AWARD WAS ACCORDINGLY MADE TO THAT FIRM ON NOVEMBER 7, 1969.

YOU CONTEND GENERALLY THAT LAKE ALMANOR SHOULD HAVE RECEIVED AWARD UNDER THE INITIAL INVITATION BECAUSE OUR DECISION INTERPOSED NO OBJECTION TO REINSTATEMENT OF INVITATION -0973 AND BECAUSE "THE U.S. ATTORNEY WAS MISINFORMED ON THE AWARDING OF THE CONTRACT TO AN INDIVIDUAL RATHER THAN A CALIFORNIA CORPORATION."

ON THE BASIS OF THE PRESENT RECORD, WE MUST CONCLUDE THAT THE AWARD TO MID VALLEY FLYING SERVICE IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

THE AUTHORITY TO CANCEL AN INVITATION AFTER BID OPENING IS PROVIDED FOR BY 10 U.S.C. 2305 (C) AND PARAGRAPH 2-404.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, AS IMPLEMENTED BY PARAGRAPH 10 OF STANDARD FORM 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, PRESUMABLY INCLUDED WITH THE BID PACKAGE FURNISHED YOU WITH THE ORIGINAL INVITATION. WHILE IT IS A GENERAL RULE THAT INVITATIONS FOR BIDS SHOULD BE CANCELED AFTER OPENING ONLY FOR COGENT REASONS, THE DETERMINATION THAT CANCELLATION IS WARRANTED IS WITHIN THE RANGE OF DISCRETION RESERVED TO THE ADMINISTRATIVE AGENCIES AND IS NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS THERE IS A CLEAR SHOWING OF ARBITRARY ACTION. SEE B-164528, SEPTEMBER 10, 1968; B-164721, NOVEMBER 21, 1968. WE FIND NO EVIDENCE OF SUCH ARBITRARY ACTION HERE. OUR OPINION, THE FACT THAT THE LOW BIDDER UNDER THE ORIGINAL INVITATION WAS UNACCEPTABLE BECAUSE OF THE LACK OF THE REQUIRED FAA CERTIFICATION COUPLED WITH THE DOUBT CONCERNING YOUR LEGAL RIGHT TO REPRESENT LAKE ALMANOR BY SIGNING ITS BID, THE ONLY OTHER BID RECEIVED, PROVIDED SUFFICIENT JUSTIFICATION FOR THE DETERMINATION THAT THE INVITATION SHOULD BE CANCELED. LIKEWISE, IN OUR OPINION, THE FACT THAT AN ACCEPTABLE BID RECEIVED UNDER THE SECOND INVITATION WAS LOWER THAN EITHER OF THE BIDS RECEIVED INITIALLY JUSTIFIED AWARD TO THAT BIDDER AS OPPOSED TO REINSTATEMENT OF THE ORIGINAL INVITATION AND AWARD TO THE LOWEST ACCEPTABLE BIDDER THEREUNDER.

IN ANY EVENT, AS POINTED OUT IN A LETTER TO YOU DATED FEBRUARY 6, 1970, FROM HEADQUARTERS UNITED STATES AIR FORCE, HAD THE CANCELED INVITATION BEEN REINSTATED, AWARD WOULD HAVE BEEN REQUIRED TO HAVE BEEN MADE TO THE LOW BIDDER THEREUNDER BECAUSE THAT BIDDER HAD IN THE MEANTIME OBTAINED THE REQUIRED FAA CERTIFICATION, A REQUIREMENT AFFECTING THE BIDDER'S RESPONSIBILITY AS OPPOSED TO BID RESPONSIVENESS. SEE B-156171, MAY 14, 1965.

ON THE MATTER OF THE OPINION EXPRESSED BY THE ASSISTANT UNITED STATES ATTORNEY IN HIS LETTER OF JANUARY 29, 1970, TO YOU, CONCERNING THE APPLICABILITY OF 18 U.S.C. 281, WE HAVE NO VIEWS TO OFFER SINCE QUESTIONS AS TO THE INTERPRETATION AND APPLICATION OF FEDERAL CRIMINAL STATUTES ARE NOT WITHIN THE JURISDICTION OF OUR OFFICE.

ACCORDINGLY, WHILE OUR OCTOBER DECISION STATED THERE WOULD BE NO OBJECTION TO REINSTATEMENT OF THE CANCELED INVITATION, ADMINISTRATIVE COMPLIANCE THEREWITH WOULD BE INAPPROPRIATE AT THIS DATE IN VIEW OF THE FACTS NOW OF RECORD. YOUR PROTEST, THEREFORE, MUST BE DENIED.