B-145769, AUG. 3, 1961
Highlights
TO THE SECRETARY OF THE INTERIOR: ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO FAIRBANKS. WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 7. WHILE IT APPEARS THAT THE AMOUNTS OF THE BIDS IN THIS INSTANCE WERE SUCH THAT IT WOULD NOT AFFECT THE AWARD. THERE IS ONE FEATURE OF THE INVITATION WHICH WE BELIEVE COULD IN OTHER CIRCUMSTANCES RESULT IN SERIOUS DIFFICULTY AND SHOULD THEREFORE BE BROUGHT TO YOUR ATTENTION IN ORDER THAT CONSIDERATION MAY BE GIVEN TO ITS MODIFICATION. UNDER THE TERMS OF ARTICLE B-6 OF THE SPECIAL CONDITIONS THE DIFFERENTIAL FOR EVALUATION OF BIDS OF FOREIGN MATERIALS IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE TOTAL BID PRICE. ALTHOUGH THE PRICE REQUIRED TO BE QUOTED WAS A SINGLE LUMP SUM WHICH INCLUDED INSTALLATION AND TESTING OF THE GENERATORS AFTER THEIR DELIVERY AT THE SITE.
B-145769, AUG. 3, 1961
TO THE SECRETARY OF THE INTERIOR:
ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO FAIRBANKS, MORSE AND COMPANY CONCERNING ITS PROTEST OF THE AWARD OF A CONTRACT FOR FURNISHING AND INSTALLING EIGHT GENERATORS AT THE GLEN CANYON DAM, UNDER BUREAU OF RECLAMATION INVITATION NO. DS-5522, WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 7, 1961, BY THE ASSISTANT SECRETARY.
WHILE IT APPEARS THAT THE AMOUNTS OF THE BIDS IN THIS INSTANCE WERE SUCH THAT IT WOULD NOT AFFECT THE AWARD, THERE IS ONE FEATURE OF THE INVITATION WHICH WE BELIEVE COULD IN OTHER CIRCUMSTANCES RESULT IN SERIOUS DIFFICULTY AND SHOULD THEREFORE BE BROUGHT TO YOUR ATTENTION IN ORDER THAT CONSIDERATION MAY BE GIVEN TO ITS MODIFICATION. UNDER THE TERMS OF ARTICLE B-6 OF THE SPECIAL CONDITIONS THE DIFFERENTIAL FOR EVALUATION OF BIDS OF FOREIGN MATERIALS IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE TOTAL BID PRICE, ALTHOUGH THE PRICE REQUIRED TO BE QUOTED WAS A SINGLE LUMP SUM WHICH INCLUDED INSTALLATION AND TESTING OF THE GENERATORS AFTER THEIR DELIVERY AT THE SITE, IN ADDITION TO THE PRICE OF THE GENERATORS. WE ARE INCLINED TO THE VIEW THAT UNDER THE PROVISIONS OF THE BUY AMERICAN ACT, AS IMPLEMENTED BY EXECUTIVE ORDER NO. 10582 AND FPR 1-6.2, COMPUTATION OF THE DIFFERENTIAL SHOULD BE BASED UPON THE COST OF THE FOREIGN SUPPLIES OR MATERIALS DELIVERED AT DESTINATION, AND THAT ADDITIONAL COSTS INVOLVED IN INSTALLATION OR OTHER SERVICES TO BE PERFORMED AFTER DELIVERY SHOULD BE EXCLUDED FROM THE COMPUTATION.
WHEN, AS IN THIS INSTANCE, THE CONTRACT FOR WHICH BIDS ARE INVITED INCLUDES BOTH SUPPLY AND CONSTRUCTION ELEMENTS, IT WOULD APPEAR TO BE DESIRABLE TO SEPARATE THOSE ELEMENTS, SO FAR AS PRACTICABLE, NOT ONLY FOR APPLICATION OF THE BUY AMERICAN REQUIREMENTS BUT ALSO TO FURNISH A MORE PRECISE BASIS FOR DETERMINATION OF THE APPLICABILITY OF PERTINENT LABOR LAWS AND OTHER REQUIREMENTS WHICH ARE NOT EQUALLY APPLICABLE TO THE PROCUREMENT OF SUPPLIES AND OF CONSTRUCTION WORK. IN THIS CONNECTION IT IS NOTED THAT THE INVITATION IN THIS INSTANCE INCORPORATED STANDARD FORM 32 (SUPPLY CONTRACT) GENERAL CONDITIONS, BUT IN ADDITION INCLUDED VARIOUS SPECIAL CONDITIONS, SUCH AS THE DAVIS BACON CLAUSE, APPLICABLE ONLY TO CONSTRUCTION CONTRACTS, AND WE HAVE BEEN INFORMALLY ADVISED BY YOUR DEPARTMENT THAT IT IS ESTIMATED THAT THE COST OF THE WORK TO BE DONE AFTER DELIVERY OF THE GENERATORS UNDER THE SUBJECT CONTRACT WILL AMOUNT TO SEVERAL HUNDRED THOUSAND DOLLARS.