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A STATEMENT IN THE IFB WHICH PRESCRIBES THAT THE ITEM TO BE FURNISHED SHALL BE A CURRENTLY STANDARD PRODUCT OF AN ESTABLISHED MANUFACTURER IS VAGUE AND AMBIGUOUS ON ITS FACE. THE GOVERNMENT IS UNDER NO OBLIGATION TO ACCEPT BIDS AND ALL BIDS MAY BE REJECTED WHEN THE BEST INTEREST OF THE GOVERNMENT WARRANTS SUCH AN ACTION. TO ATI INDUSTRIES: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30. THE SUBJECT INVITATION WAS ISSUED ON MARCH 24. BIDS WERE OPENED ON APRIL 25. EXCEPT FOR ANY DEVIATIONS FROM THE MANUFACTURER'S STANDARD PRODUCT THAT ARE REQUIRED BY THIS SPECIFICATION. ***" YOU STATE THAT THIS SWAGING TOOL IS NOT CURRENTLY A STANDARD PRODUCT OR NEVER HAS BEEN A STANDARD PRODUCT WITH BOSTON PNEUMATICS AND.

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B-175828, NOV 28, 1972

BID PROTEST - INHERENT AMBIGUITY - GOVERNMENT'S RIGHT TO REJECT BIDS CONCERNING THE DENIAL OF PROTEST BY ATI INDUSTRIES, AGAINST THE AWARD OF A CONTRACT TO BOSTON PNEUMATICS, INC. UNDER AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA. A STATEMENT IN THE IFB WHICH PRESCRIBES THAT THE ITEM TO BE FURNISHED SHALL BE A CURRENTLY STANDARD PRODUCT OF AN ESTABLISHED MANUFACTURER IS VAGUE AND AMBIGUOUS ON ITS FACE, THUS THE COMP. GEN. CONCURS WITH GSA'S PROPOSAL TO CANCEL THE INVITATION AND READVERTISE. THE GOVERNMENT IS UNDER NO OBLIGATION TO ACCEPT BIDS AND ALL BIDS MAY BE REJECTED WHEN THE BEST INTEREST OF THE GOVERNMENT WARRANTS SUCH AN ACTION. SEE 50 COMP. GEN. 464 (1970).

TO ATI INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1972, AND PRIOR CORRESPONDENCE, REGARDING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO BOSTON PNEUMATICS INC. FOR ITEM 4, UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-B6-43887-A-4-25-72, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE SUBJECT INVITATION WAS ISSUED ON MARCH 24, 1972, FOR A DEFINITE QUANTITY CONTRACT COVERING FOUR ITEMS OF DRIVERS, PROJECTILE UNITS, WRENCH SETS AND SWAGING TOOLS. BIDS WERE OPENED ON APRIL 25, 1972, AND THE RECORD INDICATES THAT BOSTON PNEUMATICS SUBMITTED THE LOWEST BID ON ITEM 4 WHICH CALLED FOR 30 SWAGING TOOLS, FLEXIBLE CABLE TERMINAL. BY LETTER DATED APRIL 26, 1972, YOUR FIRM PROTESTED AGAINST THE AWARD OF A CONTRACT FOR ITEM NO. 4 TO ANY FIRM OTHER THAN ATI. YOU CONTEND THAT AN AWARD TO ANY OTHER BIDDER WOULD CONSTITUTE AN INFRINGEMENT OF A PATENT GRANTED TO THE NORTHROP CORPORATION WHICH HAS GRANTED A LICENSE TO ATI FOR PRODUCTION OF THE ITEM. HOWEVER, YOU RECOGNIZE IN YOUR LETTER THAT ANY REMEDY IN THIS REGARD MUST BE PURSUED IN THE COURT OF CLAIMS (28 U.S.C. 1498). YOU CONTEND THAT BOSTON PNEUMATICS CANNOT MEET THE REQUIREMENTS OF PARAGRAPH 3.3, "STANDARD PRODUCT," OF INTERIM FEDERAL SPECIFICATION GGG-S-00825A. THAT PARAGRAPH READS IN PART AS FOLLOWS:

"EACH SWAGING TOOL FURNISHED UNDER THIS SPECIFICATION SHALL BE A CURRENTLY STANDARD PRODUCT OF AN ESTABLISHED MANUFACTURER, EXCEPT FOR ANY DEVIATIONS FROM THE MANUFACTURER'S STANDARD PRODUCT THAT ARE REQUIRED BY THIS SPECIFICATION. ***"

YOU STATE THAT THIS SWAGING TOOL IS NOT CURRENTLY A STANDARD PRODUCT OR NEVER HAS BEEN A STANDARD PRODUCT WITH BOSTON PNEUMATICS AND, THEREFORE, IT COULD NOT MEET THE REQUIREMENTS OF PARAGRAPH 3.3. GSA HAS ADVISED IN THIS REGARD.

"(2) AFTER A THOROUGH REVIEW OF THE SPECIFICATION, IT IS OUR CONCLUSION THAT PARAGRAPH 3.3 WHICH PRESCRIBES THAT THE ITEM TO BE FURNISHED SHALL BE A 'CURRENTLY STANDARD PRODUCT OF AN ESTABLISHED MANUFACTURER,' IS VAGUE AND AMBIGUOUS ON ITS FACE. THERE IS NOT A COMMONLY ACCEPTED DEFINITION AS TO WHAT CONSTITUTES A 'CURRENTLY STANDARD PRODUCT,' OR WHO QUALIFIES AS AN 'ESTABLISHED MANUFACTURER.' IT IS OUR VIEW, THEREFORE, THAT IN THE ABSENCE OF OBJECTIVE CRITERIA AND GUIDELINES, NEITHER A BIDDER NOR THE GOVERNMENT IS IN A POSITION TO DETERMINE WHAT IS REQUIRED BY THE SPECIFICATION."

IT IS THE OPINION OF GSA THAT IN THE ABSENCE OF ANY JUSTIFICATION REQUIRING THE NECESSITY OF PARAGRAPH 3.3 TO BE PART OF THE SPECIFICATION, THE REQUIREMENT OF THAT PARAGRAPH IS UNDULY RESTRICTIVE OF COMPETITION. IN VIEW THEREOF, GSA PROPOSES TO CANCEL THE INVITATION IN ORDER TO REVISE THE SPECIFICATION PRIOR TO READVERTISING.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE BIDS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHEN SUCH ACTION IS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. SEE 50 COMP. GEN. 464, 469-470 (1970), AND CASES CITED THEREIN. THE RESPONSIBILITY FOR MAKING A DETERMINATION TO REJECT ALL BIDS RESTS WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY AND, IN THE ABSENCE OF CLEAR PROOF THAT SUCH DISCRETION WAS ABUSED, OUR OFFICE WILL NOT OBJECT TO SUCH ACTION. IN THE PRESENT CASE, GSA HAS DETERMINED THAT PARAGRAPH 3.3 IS VAGUE AND AMBIGUOUS ON ITS FACE. FURTHER, WE NOTE THAT YOUR LETTER OF AUGUST 30, 1972, AGREES WITH THE COMMENTS MADE BY GSA REGARDING THE AMBIGUITY OF THE SPECIFICATIONS ON THE SWAGE TOOLS. CONSIDERING THAT THE INVITATION RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS, AND SINCE SECTION 1-2.404-1(B)(1) OF THE FEDERAL PROCUREMENT REGULATIONS AUTHORIZES THE CANCELLATION OF AN INVITATION FOR BIDS WHEN, AS HERE, INADEQUATE OR DEFICIENT SPECIFICATIONS ARE INCLUDED IN THE INVITATION, WE BELIEVE THAT THE RECORD WOULD SUPPORT THE PROPOSED CANCELLATION OF THE INVITATION AND THE READVERTISEMENT OF THE PROCUREMENT UNDER REVISED SPECIFICATIONS.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.

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