B-134873, MAR. 25, 1958

B-134873, MAR. 25, 1958

TO MR. L. J. VAN SICKLE:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1958, TAKING EXCEPTION TO CERTAIN STATEMENTS MADE IN OUR DECISION DATED FEBRUARY 26, 1958, WHICH CONCLUDED THAT THERE WAS NO PROPER BASIS FOR OUR OFFICE TO TAKE ANY FURTHER ACTION IN CONNECTION WITH THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER.

UPON A RE-EXAMINATION OF THE ADMINISTRATIVE RECORD, WE HAVE FOUND THAT AFTER THE BID OPENING, TOPEKA AIR FORCE DEPOT REQUESTED DALLAS AIR PROCUREMENT DISTRICT TO CONDUCT A PRE-AWARD SURVEY; THAT DALLAS AIR PROCUREMENT DISTRICT ANSWERED THAT THE SURVEY WAS UNNECESSARY AS IT COULD FURNISH A STATEMENT REGARDING YOUR STATUS; THAT BY TWX DATED NOVEMBER 21, 1957, DALLAS AIR PROCUREMENT DISTRICT ADVISED THAT ITS INVESTIGATION REVEALED "L J VAN SICKLE HAS NO MACHINERY EQUIPMENT OR FACILITIES AND IS NOT ENGAGED IN OPERATING ANY PLANT STORE WAREHOUSE OR BUSINESS ESTABLISHMENT OF ANY KIND; " AND THAT BASED ON THIS STATEMENT AND YOUR OWN ACT IN LINING OUT THE WORD "REGULAR" FROM THE "REGULAR DEALER" REPRESENTATION IN YOUR BID, THE CONTRACTING OFFICER DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT NOT TO AWARD THE SUBJECT CONTRACTS TO YOU. THUS, AT THE TIME OF AWARD, THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER WAS REASONABLY SUPPORTED BY THE INFORMATION BEFORE HIM.

NOW, YOU STATE THAT YOU ACTED INCORRECTLY WHEN YOU LINED OUT THE WORD "REGULAR.' THEREFORE, IT APPEARS THAT THE RESULT OF YOUR OWN MISREPRESENTATION WAS INSTRUMENTAL IN THE CONTRACTING OFFICER'S DETERMINATION AND THERE IS NO REASON WHY HE SHOULD HAVE SUSPECTED THAT YOUR STATUS WAS DIFFERENT THAN YOU REPRESENTED IT TO BE, ESPECIALLY IN VIEW OF THE SAME STATEMENT RECEIVED FROM THE DALLAS AIR PROCUREMENT DISTRICT.

YOUR FINANCIAL STATEMENT DATED AUGUST 31, 1957, WAS NOT REFERRED TO THE CONTRACTING OFFICER PRIOR TO THE TIME OF AWARD. IT AND THE OTHER FACTORS, HAVING A BEARING ON YOUR RESPONSIBILITY, WHICH WERE BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER AFTER THE AWARD, WERE MENTIONED IN OUR DECISION OF FEBRUARY 25, 1958, BECAUSE THOSE LATER ACQUIRED FACTORS TEND TO SHOW THAT THE CONTRACTING OFFICER'S DETERMINATION WAS CORRECT. HOWEVER, IF, AS ALLEGED, YOUR ACTUAL POSITION IS SUPERIOR TO YOUR STATUS AS REPRESENTED IN YOUR OWN FINANCIAL STATEMENT, THIS IS ANOTHER INSTANCE WHERE YOUR OWN MISREPRESENTATION CONTRIBUTED TO THE ACTION TO WHICH YOU OBJECT.

UNDER 10 U.S.C. 2305 (B), CONTRACTS ARE REQUIRED TO BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER. THEREFORE, GOVERNMENT OFFICERS ARE PRECLUDED BY LAW FROM CONSIDERING MERELY THE POSSIBLE PECUNIARY SAVINGS IN A PARTICULAR PROCUREMENT WITHOUT CONSIDERING THE BIDDER'S RESPONSIBILITY.