B-146348, JAN. 16, 1962
Highlights
TO WILKINSON MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28. WHEREIN WE HELD THAT THERE WAS NO LEGAL BASIS FOR QUESTIONING THE AWARD MADE TO THER.E.D.M. THE FACTS IN THIS CASE WERE SET OUT IN OUR DECISION OF DECEMBER 8. WILL NOT BE REPEATED IN DETAIL HEREIN. HOWARD KLAIR WAS EMPLOYED BY THE SUCCESSFUL BIDDER. KLAIR'S EMPLOYMENT WAS IN FACT TERMINATED ON MAY 1. KLAIR WAS EMPLOYED BY R.E.D.M. AN EXAMINATION OF THE PAY RECORDS DURING THE GREATER PART OF THE YEAR 1961 WAS MADE AND NO IRREGULARITY WAS FOUND. KLAIR ALSO WAS AT THE SAME TIME RECEIVING PAY AS AN OFFICER OF TECH-REPS. IF IN FACT HE WAS SUCH AN OFFICER. THIS WOULD NOT BE DETERMINATIVE OF THE MATTER HERE INVOLVED EVEN IF IT WERE DEFINITELY ESTABLISHED AS TO HOW MR.
B-146348, JAN. 16, 1962
TO WILKINSON MANUFACTURING COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1961, REQUESTING A RECONSIDERATION OF OUR DECISION OF DECEMBER 8, 1961, WHEREIN WE HELD THAT THERE WAS NO LEGAL BASIS FOR QUESTIONING THE AWARD MADE TO THER.E.D.M. CORPORATION ON JUNE 29, 1961, UNDER INVITATION FOR BIDS NO. ORD-11-173-61- 22.
THE FACTS IN THIS CASE WERE SET OUT IN OUR DECISION OF DECEMBER 8, 1961, AND WILL NOT BE REPEATED IN DETAIL HEREIN.
YOUR FIRST CONTENTION CONCERNS THE LENGTH OF TIME THAT ONE MR. HOWARD KLAIR WAS EMPLOYED BY THE SUCCESSFUL BIDDER, R.E.D.M. CORPORATION. YOU STATE THAT MR. KLAIR'S EMPLOYMENT WAS IN FACT TERMINATED ON MAY 1, 1961, OR PRIOR TO THE BID OPENING TIME ON JUNE 9, 1961, BUT THAT MR. ROBERT MASTERS, PRODUCTION MANAGER FOR THE CORPORATION, CALLED HIM AT THE LAST MINUTE TO REPRESENT THE CORPORATION AT THE BID OPENING. ALSO, YOU STATE THAT WHEN R.E.D.M. REALIZED THAT IT MIGHT LOSE THE AWARD IT REESTABLISHED MR. KLAIR'S EMPLOYMENT.
AS STATED IN OUR DECISION, THE RECORD CONTAINS AFFIDAVITS FROM VARIOUS PARTIES, SIGNED LETTERS, TELEGRAMS AND OTHER MATERIAL WHICH CONTAIN CONFLICTING STATEMENTS. AN INVESTIGATION OF R.E.D.M.'S RECORDS BY THE ORDNANCE PROVOST MARSHAL SUBMITTED TO OUR OFFICE ON OCTOBER 12, 1961, ESTABLISHED THAT MR. KLAIR WAS EMPLOYED BY R.E.D.M. AT A FIXED SALARY FROM MAY 1, 1960, TO AUGUST 19, 1961, AND AN EXAMINATION OF THE PAY RECORDS DURING THE GREATER PART OF THE YEAR 1961 WAS MADE AND NO IRREGULARITY WAS FOUND. WHETHER MR. KLAIR ALSO WAS AT THE SAME TIME RECEIVING PAY AS AN OFFICER OF TECH-REPS, INC., WOULD NOT AFFECT HIS RIGHT TO ACT AS AN OFFICER OF R.E.D.M. IF IN FACT HE WAS SUCH AN OFFICER. YOU DISPUTE THE CONTRACTING OFFICER'S STATEMENT THAT PRIOR TO THE BID OPENING MR. KLAIR TELEPHONED MR. FRED KANN, EXECUTIVE VICE PRESIDENT OF R.E.D.M. TO ASCERTAIN THE AMOUNT OF THE BID PRICE TO BE INSERTED ON THE BID FORM. BUT THIS WOULD NOT BE DETERMINATIVE OF THE MATTER HERE INVOLVED EVEN IF IT WERE DEFINITELY ESTABLISHED AS TO HOW MR. KLAIR ARRIVED AT THE AMOUNT OF THE BID PRICE.
AS TO WHETHER THE GOVERNMENT SURVEY OF R.E.D.M.'S PLANT IS ERRONEOUS AND THAT R.E.D.M. IS IN FACT NOT CAPABLE OF PERFORMING THE CONTRACT, THESE ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE CONCERNED. IF, AS YOU INDICATE, R.E.D.M. DOES NOT AS YET HAVE THE EQUIPMENT FOR MANUFACTURE OF THE ITEMS INVOLVED AS IT HAD REPRESENTED TO THE GOVERNMENT, THIS MIGHT RESULT IN A TERMINATION FOR DEFAULT AND THE PROCUREMENT OF THE ITEMS FROM ANOTHER SOURCE.
THE MATTERS REFERRED TO IN THE LETTER OF SEPTEMBER 7, 1961, FROM MR. J. LEE RANKIN, ATTORNEY FOR YOUR COMPANY, WERE FULLY CONSIDERED IN ARRIVING AT OUR CONCLUSION IN THE DECISION OF DECEMBER 8, 1961. THE PRINCIPLES OF LAW CONSIDERED APPLICABLE WERE SET OUT IN THE NEXT TO THE LAST PARAGRAPH OF OUR DECISION AND NEED NOT BE RESTATED.
SINCE YOUR LETTER DOES NOT PRESENT ANY MATERIAL EVIDENCE THAT HAS NOT BEEN HERETOFORE CONSIDERED, THE DECISION OF DECEMBER 8, 1961, IS AFFIRMED.