such determination, award was made on June 26, 1959, to the second low bidder.

You contend in your telegram referred to above and in a letter of July 1, 1959, to the Army Engineer District, that the proper bid bond form was not supplied with the invitation, you were not advised where such form could be obtained, and your bonding company was unable to obtain a copy "in this area." You further state that you have been using the surety's form regularly without question. Finally, you state in the telegram:

*** No opportunity afforded us to furnish appropriate forms although surety able and willing to comply immediately.

With respect to the bid bond the invitation provides the following information on the face of Standard Form 20, Invitation for Bids:

Information regarding bidding material, bid guarantee, and bonds

Bid bond on U.S. Standard Form No. 24 in a penal sum of 20% of the bid price or $1,000,000, whichever is the lesser, will be required if the bid price is in excess of $2,000. The bid bond penalty will be expressed in terms of a percentage of the bid price or $1,000,000, whichever is the lesser. Failure to submit the bond on time is cause for rejection of the bid.

Further, the invitation states at page INV-3:

The attention of all bidders is invited to Standard Government Forms of bid bond, payment bond and performance bond, copies of which may be obtained upon application.

We believe that the foregoing quoted provisions are sufficient to have put prospective bidders clearly on notice that a bid bond on Standard Form 24 in the amount stated was required to be submitted with each bid and that copies of the proper form could be obtained from the contracting officer.

We do not think that the mere failure to utilize a designated form is a sufficient basis to reject an otherwise acceptable bid. In this instance, however, the difference goes beyond the question of form and actually represents a difference in the rights and obligations of the parties. Specifically, the bid bond submitted by your firm provides the following as a condition precedent to the incurring of an obligation under the bond by the surety:

That any suits at law or proceedings in equity brought or to be brought against the Surety to recover any claim hereunder must be instituted and service had upon the Surety within ninety (90) days after the acceptance of said bid of the Principal by the Obligee.

The standard Government bid bond form prescribes no such limitation on the time within which an action must be brought against the surety by the obligee and therefore the Government could bring suit against the surety at any time within a much longer period than would be permissible under the bid bond submitted by you. See 50 Am. Jur. Suretyship secs. 44 and 184. Considering the size and complexity of the Federal Government and the fact that suit would have to be brought by the Department of Justice, there is a serious

question as to whether a suit against the surety could be brought in the normal course of business within the time permitted under the bond furnished by you. It appears, therefore, that the bond submitted by you fails to meet a material requirement of the invitation and cannot be regarded as responsive; nor can the failure to comply be remedied by an offer to submit the bid bond on the proper form after the other bids have been exposed. See 38 Comp. Gen. 532.

The question next arises as to whether the full and free competition required by the laws governing advertised Federal procurement have been met in this instance. It may be argued that competition from your firm was precluded by your inability to obtain the proper bond form. We need not consider what the effect on the validity of the procurement would have been had it been shown that you made every reasonable effort to submit the bid bond in the proper form within the time required (although we have held that the failure by inadvertence to furnish an invitation or even an addendum to an interested bidder is not sufficient to render a procurement invalid). In this instance, however, you were clearly advised by the provision of the invitation quoted abovè that the proper bid forms could be obtained from the contracting officer. A report on the matter from the Department of the Army shows that the contracting officer stood ready and able at any time prior to bid opening to furnish your firm or any other interested party copies of the bond form. We note also that none of the other six bidders appears to have experienced any difficulty in obtaining the proper form. Further, we are quite confident that any Federal Government office in the general area with authority to award the type of contracts with which bond furnishing requirements are normally associated would have provided bid bond forms at your request. We are also confident that the surety company involved, which has furnished many bonds on Standard Form 24 in the past, would have had little difficulty in securing such forms.

The fact, as indicated by your correspondence and the administrative report, that you have regularly submitted this same form in satisfaction of the bid bond requirement in the past would tend to indicate that its submission in this instance was due to a deliberate policy rather than to an inability to obtain the designated forms. The further fact that your surety's bid form may have been regarded as acceptable in the past does not, of course, establish that it should be considered interchangeable with the standard Government form.

For the foregoing reasons we conclude that there has been presented no basis for disturbing the award made to the second low bidder.

[B-140155]

Contracts-Readvertised Procurement-Justification

The cancellation of an invitation after the only conforming bid is found to be excessive both as to price and as to the quality of the item offered and the readvertisement of the procurement on the basis of less stringent specifications to match the needs of the procuring agency, which actions result in wider competition and a savings to the Government, are proper administrative actions. A protest by the only bidder, whose product was excessive both as to price and as to the product offered, that the readvertised procurement on the basis of less stringent specifications was ambiguous, because only one drawing was furnished for two dissimilar mechanisms and that the test procedures in the readvertised procurement should not have been eliminated, is not supported by the record showing the competition prices were obtained from several interested bidders, which indicates an understanding of the bid requirements, and an administrative report showing that the detailed test procedures were not necessary but that bidders were only required to comply with the specifications.

To the Secretary of the Army, August 13, 1959:

Reference is made to a letter dated July 28, 1959, from the Assistant Secretary (Logistics) submitting an administrative report in connection with the protests of Jo-Line Tools, Inc., and Richmont, Inc., against the award of a contract under invitation for bids No. IDP-X-ORD-01-021-59-10289 for the procurement of approximately 10,000 torque wrenches by the Army Rocket and Guided Missile Agency. The letter requests our Office to render a decision with respect to the protests in order that the administrative actions taken thereon might be finalized.

Invitation for bids No. IDP-X-ORD-01-021-59-10103, dated October 13, 1958, requested bids on eight sizes of approximately 10,000 torque wrenches in accordance with specifications of Ordnance Drawing No. 8022631, Revision D. Four bidders responded, including Jo-Line and Richmont which submitted both a primary and alternate bid. However, only Jo-Line and Richmont submitted sample wrenches with their bids as required by the invitation for test and evaluation. Upon evaluation of the sample wrenches submitted, it was determined that the Jo-Line wrench and the Richmont alternate sample wrench did not meet the specifications of Ordnance Drawing No. 8022631, Revision D. However, it was determined that the only acceptable bid was Richmont's primary bid which was about $182,000 in excess of the Jo-Line bid. The contracting officer and the Engineering Branch determined that the specifications of the invitation were in excess of the quality necessary for the needs of the Government and that the best interests of the Government would be served by relaxation of the specifications to match the requirements of the ordering agency. It was further found by the contracting officer that the Jo-Line bid deviated substantially from the specifications and that award to Jo-Line would have been prejudicial to other firms who might have bid on less

stringent specifications. Accordingly, the invitation was canceled on January 17, 1959, pursuant to section 2.403 (e) (2), of the Army Procurement Procedure since it appeared that the specifications should be revised.

Thereafter, the specifications were informally coordinated with Richmont and Jo-Line for the purpose of reducing the engineering requirements so as to afford wider competition for wrenches of adequate quality but not of the excessive quality called for under the canceled invitation. Ordnance Drawing No. 8022631 was accordingly revised to provide for less stringent requirements for the procurement of torque wrenches.

On February 24, 1959, invitation for bids No. IDP-X-ORD-01021-59-10289 was issued incorporating revised Drawing No. 8022631, Revision E, and increasing each item by one wrench. Five bids were received in response to the invitation, including those of Richmont, Jo-Line and Torque Controls, Inc. Jo-Line, in a letter accompanying its bid which quoted the same unit prices as under the canceled invitation, stated that it was protesting any award under the invitation and that it was submitting a bid for the sole purpose of maintaining a position of responsiveness. Inasmuch as Torque Controls, Inc., submitted the lowest responsive bid, contract No. DA-01-021-ORD-11535 was awarded to that firm on May 15, 1959, for the furnishing of the torque wrenches covered by the invitation. Jo-Line protests the award of the resulting contract because: 1. It offered torque wrenches conforming to Ordnance Drawing No. 8022631, Revision D;

2. No valid requirement existed for the change in specifications; 3. The new "Revision E" of the drawing restricted, but did not essentially change, the basic requirements; and

4. The cancellation of the first invitation and the readvertisement under the second were invalid.

It is, therefore, concluded by Jo-Line that award must be made to it as the low bidder under the first invitation.

The requirement in the first invitation that samples be furnished was for the purpose of determining that bidders did, in fact, offer to supply torque wrenches meeting the specifications. Hence, the submission of a sample by Jo-Line which was determined, after engineering analysis, to be not in accordance with the specifications must be regarded as a qualification of its bid, requiring its rejection. See 34 Comp. Gen. 180; 37 id. 745. It is well established that the responsibility for drafting proper specifications which reflect the needs of the procuring agency and for determining factually whether articles offered by bidders meet those specifications is primarily that of the procuring agency. See 17 Comp. Gen. 554; 36 id. 251. We find nothing in the evidence of record that the

determination made that the wrenches offered by Jo-Line failed to meet specifications was arbitrary or not supported by competent evidence. To hold otherwise would be tantamount to placing the Government in a position of allowing a bidder to dictate specifications which would permit acceptance of equipment which did not, in the considered judgment of the procuring agency, reasonably meet the advertised requirements.

In view of the limited response to the first invitation and of the fact that the only conforming bid was excessive both as to price and as to the torque wrench offered, we feel that it was entirely reasonable to consider a relaxation of the specification requirements to match the desired needs of the procuring agency and to generate, if possible, wider competitive interest. That such is a proper and required procurement responsibility is not open to serious question, especially, as here, where it has been demonstrated that revision of Ordnance Drawing No. 8022631 was accomplished to further the competitive bidding system. Even if it be conceded that the revision was not major in scope, the record does establish that "Revision E" did result in more, not less, competition and in savings to the Government.

10 U.S. Code 2305 (b) provides for the rejection of all bids when such action is determined to be in the Government's interest. It has been held consistently that an invitation for bids does not impart any obligation to accept any of the bids received and all bids may be rejected where it is determined to be in the Government's interest to do so. See 37 Comp. Gen. 760, 761, and the cases therein cited. The authority to reject all bids is not ordinarily subject to review by the courts or our Office. See B-118013, March 31, 1954; B-128422, August 30, 1956; B-131028, April 29, 1957; Harney v. Dunkee, 237 P. 2d 561; 31 ALR 2d 469; Champion Coated Paper Company v. Joint Committee, 47 App. D. C. 141. Cf. 37 Comp. Gen. 12; 34 id. 535. A similar matter was the subject of our decision at 36 Comp. Gen. 364, and it was stated therein that when it is administratively determined that the lowest acceptable bid is in excess of the amount for which the Government should be able to procure the particular supplies, a rejection of all bids and a readvertisement for new bids was considered as a proper exercise of administrative discretion. Also, see, 17 Comp. Gen. 554. Accordingly, under the circumstances reported, we agree that the administrative actions taken with respect to the protest of Jo-Line were proper.

Concerning the Richmont protest, it is the position of that firm as set forth in its letter of May 8, 1959, that Ordnance Drawing No. 8022631, Revision E, is both ambiguous and confusing. Rich