B-130922, JUN. 12, 1957

B-130922, JUN. 12, 1957

TO UNION SPECIAL MACHINE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1957, AND A SUBSEQUENT CONFERENCE HELD WITH A REPRESENTATIVE OF YOUR FIRM, FURTHER PROTESTING THE REJECTION OF YOUR BID ON ITEMS 15, 19, AND 20 OF INVITATION FOR BIDS NO. 600-563-57, ISSUED ON OCTOBER 8, 1956, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., AND AGAINST THE AWARD OF A CONTRACT FOR THOSE ITEMS TO THE SINGER SEWING MACHINE COMPANY. IN GENERAL, YOU TAKE ISSUE WITH THE NAVY'S CONCLUSIONS WITH RESPECT TO CERTAIN TECHNICAL FEATURES AND PERFORMANCE CHARACTERISTICS OF THE MACHINES IN QUESTION, AND SPECIFICALLY ALLEGE A LACK OF TECHNICAL COMPETENCE ON THE PART OF THOSE GOVERNMENT EMPLOYEES CHARGED WITH THE RESPONSIBILITY OF APPRAISING THE BIDS AND MAKING THE AWARD.

THE COURTS AND ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER EQUIPMENT FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. THIS CONNECTION, ATTENTION IS INVITED TO THE CASES OF O-BRIEN V. CARNEY, 6 F.SUPP. 761, ROYAL SUNDRIES CORP. V. UNITED STATES, 111 F.SUPP. 136, PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, AND THE FAIRLY RECENT CASE OF FRIEND V. LEE, 96 U.S.APP.D.C. 224, 221 F.2D 96, WHEREIN IT WAS SAID: "THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION AND IS NOT SUBJECT TO REVIEW BY THE JUDICIAL BRANCH OF THE GOVERNMENT.' FURTHERMORE, IT IS OUR VIEW THAT WHEN THERE EXISTS A SUBSTANTIAL DIFFERENCE OF TECHNICAL OPINION AS TO THE RELATIVE MERITS OF TWO PRODUCTS, IT CANNOT BE SAID THAT THE SELECTION OF EITHER TO THE EXCLUSION OF THE OTHER CONSTITUTES A VIOLATION OF THE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING, IN THE ABSENCE OF A SHOWING OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF INDISPUTABLE FACTS. IN THE INSTANT CASE THE RECORD INDICATES THAT "PRIOR TO AWARD, BOTH BIDS WERE REVIEWED BY COGNIZANT TECHNICAL PERSONNEL," AND THE RECORD APPEARS TO BE COMPLETELY DEVOID OF ANY EVIDENCE OF FAVORITISM, OR ARBITRARY OR CAPRICIOUS ACTION. IT MAY BE THAT THERE WERE ERRORS OF JUDGMENT BOTH IN THE ADOPTION OF THE SPECIFICATIONS USED AND IN THE APPLICATION AND INTERPRETATION OF THE SPECIFICATIONS WITH RESPECT TO YOUR BID, BUT SO LONG AS THE DECISIONS MADE REPRESENTED THE HONEST JUDGMENT OF THE INDIVIDUALS AUTHORIZED TO ACT FOR THE GOVERNMENT IN THE MATTER, FAIRLY EXERCISED IN THE LIGHT OF THE INFORMATION AND KNOWLEDGE AVAILABLE TO THEM, WE CANNOT FIND THE CONTRACT AWARDED TO BE LACKING IN LEGAL VALIDITY.