B-170654, FEB 8, 1971
Highlights
SINCE THE THREE BIDS TO WHICH THE INQUIRY IS DIRECTED WERE $15.15. GAO SEES NO BASIS FOR CONCLUDING THAT SUCH BIDS ARE. BECAUSE PROTESTANT HAS INDICATED THAT IT IS DROPPING ITS PROTEST. NO FURTHER ACTION IS CONTEMPLATED IN THIS MATTER. WHICH WAS DISCUSSED AT LENGTH IN OUR DECISION OF JANUARY 6. YOUR ATTENTION IS INVITED TO THAT SECTION WHICH STATES: "IF THE SECRETARY CONCERNED OR HIS REPRESENTATIVE CONSIDERS THAT ANY BID RECEIVED AFTER FORMAL ADVERTISING EVIDENCES A VIOLATION OF THE ANTITRUST LAWS. HE IS REQUIRED BY 10 U.S.C. 2305(D) TO REFER SUCH BIDS TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION. PRACTICES WHICH ARE DESIGNED TO ELIMINATE COMPETITION OR RESTRAIN TRADE AND WHICH MAY EVIDENCE POSSIBLE VIOLATION OF SUCH LAWS INCLUDE COLLUSIVE BIDDING.
B-170654, FEB 8, 1971
BID PROTEST - COLLUSIVE BIDDING DECISION REGARDING THE "NON-COMPETITIVE" ASPECT OF AN AWARD UNDER SOLICITATION ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER. SINCE THE THREE BIDS TO WHICH THE INQUIRY IS DIRECTED WERE $15.15, $15.25, AND $16.97, GAO SEES NO BASIS FOR CONCLUDING THAT SUCH BIDS ARE, IN THEMSELVES, INDICATIVE OF COLLUSIVE BIDDING NOR DOES THE FACT THAT THE "MANUFACTURER" OF THE ITEM BID A HIGHER PRICE THAN EITHER OF ITS "DEALERS" REQUIRE SUBMISSION OF THE BIDS TO THE ATTORNEY GENERAL UNDER ASPR 1-111.2 OR 10 U.S.C. 2305(D). BECAUSE PROTESTANT HAS INDICATED THAT IT IS DROPPING ITS PROTEST, NO FURTHER ACTION IS CONTEMPLATED IN THIS MATTER.
TO TYCO, INCORPORATED:
WE REFER TO YOUR LETTER OF JANUARY 11, 1971, REQUESTING AN OPINION ON THE "NON-COMPETITIVE" ASPECT OF THE AWARD UNDER SOLICITATION NO. D0943150, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO, WHICH WAS DISCUSSED AT LENGTH IN OUR DECISION OF JANUARY 6, 1971, WHICH DENIED YOUR PROTEST UNDER THE SAME SOLICITATION.
REGARDING YOUR INQUIRY ABOUT THE APPLICABILITY OF ASPR 1-111.2, WHICH DEALS WITH NONCOMPETITIVE PRACTICES, YOUR ATTENTION IS INVITED TO THAT SECTION WHICH STATES: "IF THE SECRETARY CONCERNED OR HIS REPRESENTATIVE CONSIDERS THAT ANY BID RECEIVED AFTER FORMAL ADVERTISING EVIDENCES A VIOLATION OF THE ANTITRUST LAWS, HE IS REQUIRED BY 10 U.S.C. 2305(D) TO REFER SUCH BIDS TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION. SIMILARLY, EVIDENCE OF SUCH VIOLATIONS IN NEGOTIATED PROCUREMENTS SHOULD BE REFERRED TO THE ATTORNEY GENERAL. PRACTICES WHICH ARE DESIGNED TO ELIMINATE COMPETITION OR RESTRAIN TRADE AND WHICH MAY EVIDENCE POSSIBLE VIOLATION OF SUCH LAWS INCLUDE COLLUSIVE BIDDING, FOLLOW THE LEADER PRICING, ROTATED LOW BIDS, UNIFORM ESTIMATING SYSTEMS, SHARING OF THE BUSINESS, IDENTICAL BIDS, ETC." SINCE THE THREE BID PRICES TO WHICH YOUR INQUIRY IS DIRECTED WERE $15.15, $15.25 AND $16.97, WE SEE NO BASIS FOR CONCLUDING THAT SUCH BID PRICES ARE, IN THEMSELVES, INDICATIVE OF COLLUSIVE BIDDING. NEITHER DO WE CONSIDER THE FACT THAT THE "MANUFACTURER" OF THE ITEM BID A HIGHER PRICE THAN EITHER OF ITS "DEALERS" AS REQUIRING SUBMISSION OF THE BIDS TO THE ATTORNEY GENERAL UNDER ASPR 1- 111.2 OR 10 U.S.C. 2305(D).
IN VIEW OF THE FOREGOING, AND THE STATEMENT IN YOUR LETTER THAT YOU ARE DROPPING YOUR PROTEST, NO FURTHER ACTION IS CONTEMPLATED IN THIS MATTER.