B-143385, SEP. 23, 1960
Highlights
WHICH WAS THE SUBJECT OF OUR DECISION OF AUGUST 18. WILL OR CAN THE CONTRACTING OFFICER CONCERNED STATE THAT THE LOW BIDDER IS IN STRICT COMPLIANCE WITH APPENDIX A. ASSUMING THERE IS MORE THAN ONE BIDDER. DOES THE CONTRACTING OFFICER HAVE THE AUTHORITY TO ACCEPT THE LOW BID ON AN INVITATION TO BID WITH THE FULL KNOWLEDGE THAT THE LOW BIDDER DOES NOT. WILL NOT STRICTLY COMPLY WITH THE SPECIFICATIONS? WE ARE NOT IN A POSITION TO CATEGORICALLY STATE. THAT SHAW WILL PERFORM HIS CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. THIS IS A MATTER HAVING PARTICULAR REFERENCE TO THE ADMINISTRATION OF THE CONTRACT AS TO WHICH OUR OFFICE GENERALLY HAS NO JURISDICTION. 221 F.2D 96: "THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION AND IS NOT SUBJECT TO REVIEW BY THE JUDICIAL BRANCH OF THE GOVERNMENT.'.
B-143385, SEP. 23, 1960
TO MR. JOHN U. TRUSLOW, GENERAL MANAGER:
BY LETTER DATED AUGUST 24, 1960, YOU REQUEST THAT OUR OFFICE CONSIDER THE FOLLOWING QUESTIONS PRESENTED WITH FURTHER REFERENCE TO THE AWARD MADE TO GEORGE F. SHAW UNDER INVITATION FOR BIDS NO. CML-18 064-60-59, WHICH WAS THE SUBJECT OF OUR DECISION OF AUGUST 18, 1960, TO YOU.
"1. WILL OR CAN THE CONTRACTING OFFICER CONCERNED STATE THAT THE LOW BIDDER IS IN STRICT COMPLIANCE WITH APPENDIX A, EMBRYONATED EGG SPECIFICATIONS AND IN PARTICULAR IN COMPLIANCE WITH THE VARIOUS POINTS RAISED IN MY LETTER OF JUNE 30?
"2. ASSUMING THERE IS MORE THAN ONE BIDDER, DOES THE CONTRACTING OFFICER HAVE THE AUTHORITY TO ACCEPT THE LOW BID ON AN INVITATION TO BID WITH THE FULL KNOWLEDGE THAT THE LOW BIDDER DOES NOT, CANNOT, AND WILL NOT STRICTLY COMPLY WITH THE SPECIFICATIONS?
WITH RESPECT TO THE FIRST QUESTION, WE ARE NOT IN A POSITION TO CATEGORICALLY STATE, ON BEHALF OF THE CONTRACTING OFFICER, THAT SHAW WILL PERFORM HIS CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. THIS IS A MATTER HAVING PARTICULAR REFERENCE TO THE ADMINISTRATION OF THE CONTRACT AS TO WHICH OUR OFFICE GENERALLY HAS NO JURISDICTION. AS STATED IN THE CASE OF FRIEND V. LEE, 221 F.2D 96: "THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION AND IS NOT SUBJECT TO REVIEW BY THE JUDICIAL BRANCH OF THE GOVERNMENT.' THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT IN THE ABSENCE OF EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER ORDINARILY FOR OUR DETERMINATION. THAT PARTICULARLY IS TRUE HERE, WHERE THE CONTRACT WAS AWARDED TO THE LOWEST BIDDER WHOSE BID CONFORMED TO THE INVITATION REQUIREMENTS. WE SUGGEST THAT IF YOU HAVE FURTHER DOUBTS AS TO THE ABILITY OF SHAW TO MEET THE TECHNICAL REQUIREMENTS OF THE CONTRACT, THE MATTER BE PRESENTED TO THE PROCUREMENT AGENCY INVOLVED.
CONCERNING YOUR SECOND QUESTION WHICH APPEARS TO BE HYPOTHETICAL, YOU ARE ADVISED THAT THE COMPETITIVE PROCUREMENT STATUTE HERE INVOLVED REQUIRES THAT AWARDS BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. ON THE BASIS OF THE PRESENT RECORD WE MUST AGAIN CONCLUDE THAT THE AWARD MADE TO SHAW WAS IN COMPLIANCE WITH SUCH STATUTORY REQUIREMENTS.