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B-165409, MAR. 13, 1969

B-165409 Mar 13, 1969
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THAT THE INVITATION WAS DEFECTIVE AND THAT THE AWARD MADE TO HUGHES ELECTRON DYNAMICS DIVISION. WAS IMPROPER. SINCE AT THE TIME OF OUR DECISION IT APPEARED THAT THE CONTRACT HAD BEEN COMPLETED WE CONCLUDED THAT CORRECTIVE ACTION WAS NOT POSSIBLE. YOU STATE THAT CARSON WAS ASKED BY AIR FORCE TECHNICAL PERSONNEL TO PREPARE A SPECIAL DESIGN AND SPECIFICATION OF AN ARGON LASER BECAUSE STANDARD AVAILABLE LASERS WOULD NOT MEET THE SPECIAL AIR FORCE REQUIREMENTS. IN VIEW THEREOF AND SINCE OUR OFFICE DETERMINED THAT AN AWARD WAS MADE TO A NONRESPONSIVE BIDDER. WHILE IT IS REGRETTABLE THAT THE CONTRACT WAS AWARDED TO ANOTHER COMPANY UNDERA DEFECTIVE INVITATION. IT APPEARS THAT SUCH COSTS ARE MERELY A PART OF THE COST OF DOING BUSINESS.

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B-165409, MAR. 13, 1969

TO FISHMAN AND VAN KIRK:

YOUR LETTER OF FEBRUARY 27, 1969, REFERS TO OUR DECISION OF DECEMBER 26, 1968, B-165409, AND REQUESTS ON BEHALF OF CARSON LABORATORIES, INC. (CARSON), PAYMENT OF THE SUM OF $7,125, REPRESENTING DESIGN EXPENSE INVOLVED IN DESIGNING A LASER WHICH WOULD MEET THE REQUIREMENTS OF THE GOVERNMENT.

IN THE CITED DECISION WE HELD, FOR THE REASONS STATED THEREIN, THAT THE INVITATION WAS DEFECTIVE AND THAT THE AWARD MADE TO HUGHES ELECTRON DYNAMICS DIVISION, HUGHES AIRCRAFT COMPANY, WAS IMPROPER. HOWEVER, SINCE AT THE TIME OF OUR DECISION IT APPEARED THAT THE CONTRACT HAD BEEN COMPLETED WE CONCLUDED THAT CORRECTIVE ACTION WAS NOT POSSIBLE. YOU STATE THAT CARSON WAS ASKED BY AIR FORCE TECHNICAL PERSONNEL TO PREPARE A SPECIAL DESIGN AND SPECIFICATION OF AN ARGON LASER BECAUSE STANDARD AVAILABLE LASERS WOULD NOT MEET THE SPECIAL AIR FORCE REQUIREMENTS. YOU FURTHER STATE THAT CARSON EXPENDED $7,125 IN DESIGNING THE LASER AND THE SPECIFICATION AS REQUESTED BY THE AIR FORCE. IN VIEW THEREOF AND SINCE OUR OFFICE DETERMINED THAT AN AWARD WAS MADE TO A NONRESPONSIVE BIDDER, YOU STATE THAT JUSTICE REQUIRES THAT THE GOVERNMENT REIMBURSE THE $7,125 TO CARSON.

THE RECORD DOES NOT SHOW THAT THE GOVERNMENT ENTERED INTO ANY AGREEMENT WITH CARSON TO PAY IT FOR DESIGNING A SPECIAL LASER OR SPECIFICATION. THE CONTRARY, IF CARSON EXPENDED ANY AMOUNTS IN MAKING A DESIGN, IT APPEARS THAT CARSON INTENDED TO RECOVER SUCH EXPENSES BY OBTAINING A CONTRACT FROM THE GOVERNMENT FOR FURNISHING THE ITEM. WHILE IT IS REGRETTABLE THAT THE CONTRACT WAS AWARDED TO ANOTHER COMPANY UNDERA DEFECTIVE INVITATION, THAT FACT, IN THE ABSENCE OF AN AGREEMENT BY A GOVERNMENT REPRESENTATIVE AUTHORIZED TO CONTRACT ON BEHALF OF THE GOVERNMENT TO REIMBURSE CARSON FOR THE DESIGN COSTS, AFFORDS NO LEGAL BASIS FOR PAYMENT OF THE AMOUNT CLAIMED. IT APPEARS THAT SUCH COSTS ARE MERELY A PART OF THE COST OF DOING BUSINESS. MOREOVER, THE JURISDICTION OF OUR OFFICE DOES NOT EXTEND TO THE SETTLEMENT OF CLAIMS ON AN EQUITABLE BASIS.

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