B-166072, MAR. 28, 1969
Highlights
TO DEAR GENERAL HEDLUND: THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE LORVIC CORPORATION DENYING ITS PROTEST AGAINST CONTRACT AWARDS UNDER SOLICITATIONS DSA-120-68-R-3027 AND DSA-120-69-R-1110. THIS MATTER WAS THE SUBJECT OF A REPORT DATED FEBRUARY 28. IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT NEGOTIATIONS WERE SO CONDUCTED AS TO PROVIDE EQUAL COMPETITIVE OPPORTUNITY OR TO INSURE OBTAINING THE MOST FAVORABLE PRICE. IN CONNECTION WITH THE FIRST PROCUREMENT WE FEEL THAT THE PRIOR SOLE SOURCE SUPPLIER SHOULD HAVE BEEN ADVISED THAT COMPETITION DID IN FACT EXIST AND GIVEN THE OPPORTUNITY TO REVISE ITS INITIAL OFFER IN THE LIGHT OF THIS DEVELOPMENT. SHOULD HAVE BEEN ADVISED OF THE DELETION OF THE PATENT INDEMNITY CLAUSE AND PROVIDED AN OPPORTUNITY TO SUBMIT AN AMENDED PROPOSAL IN THE LIGHT OF THAT MODIFICATION.
B-166072, MAR. 28, 1969
TO DEAR GENERAL HEDLUND:
THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE LORVIC CORPORATION DENYING ITS PROTEST AGAINST CONTRACT AWARDS UNDER SOLICITATIONS DSA-120-68-R-3027 AND DSA-120-69-R-1110. THIS MATTER WAS THE SUBJECT OF A REPORT DATED FEBRUARY 28, 1969, REFERENCE DSAH-D, FROM YOUR ASSISTANT COUNSEL.
WHILE OUR DECISION SUPPORTS THE ACTIONS OF THE PROCURING ACTIVITY IN CONDUCTING THE PROCUREMENTS ON A COMPETITIVE BASIS, IRRESPECTIVE OF THE ALLEGED PATENT INFRINGEMENT, IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT NEGOTIATIONS WERE SO CONDUCTED AS TO PROVIDE EQUAL COMPETITIVE OPPORTUNITY OR TO INSURE OBTAINING THE MOST FAVORABLE PRICE.
IN CONNECTION WITH THE FIRST PROCUREMENT WE FEEL THAT THE PRIOR SOLE SOURCE SUPPLIER SHOULD HAVE BEEN ADVISED THAT COMPETITION DID IN FACT EXIST AND GIVEN THE OPPORTUNITY TO REVISE ITS INITIAL OFFER IN THE LIGHT OF THIS DEVELOPMENT. SEE COMP. GEN. B-164242, JUNE 25, 1968.
AS TO THE SECOND PROCUREMENT, THE ORIGINAL SUPPLIER -- WHICH ALLEGED POSSESSION OF AN EXCLUSIVE LICENSE FROM THE PATENTEE -- SHOULD HAVE BEEN ADVISED OF THE DELETION OF THE PATENT INDEMNITY CLAUSE AND PROVIDED AN OPPORTUNITY TO SUBMIT AN AMENDED PROPOSAL IN THE LIGHT OF THAT MODIFICATION.
FINALLY, WE FIND NO INDICATION OF ANY EFFORT TO NEGOTIATE WITH DAVIES ROSE HOYT FOR A BETTER PRICE WITHOUT PATENT INDEMNITY THAN THE PRICE ON THE FIRST PROCUREMENT UNDER WHICH IT WAS OBLIGATED TO INDEMNIFY THE GOVERNMENT. WE BELIEVE THAT IN THE CIRCUMSTANCES SUCH ACTION WOULD HAVE BEEN IN THE GOVERNMENT'S INTEREST.
SINCE WE UNDERSTAND THAT DELIVERIES HAVE BEEN COMPLETED UNDER BOTH CONTRACTS, NO CORRECTIVE ACTION IS INDICATED. HOWEVER, WE RECOMMEND APPROPRIATE ACTION TO PRECLUDE RECURRENCE IN FUTURE PROCUREMENTS.