B-128422, AUG. 30, 1956

B-128422, AUG. 30, 1956

TO THE COOPER EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1956, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF JULY 27, 1956, HOLDING, FOR THE REASONS STATED, THAT THERE WAS NO LEGAL BASIS FOR QUESTIONING THE ACTION OF THE COMMANDANT OF THE MARINE CORPS IN REJECTING ALL BIDS RECEIVED IN RESPONSE TO INVITATION NO. 379 WHICH REQUESTED BIDS FOR FURNISHING SODA FOUNTAINS, REPAIR PARTS, ETC., TO BE IN ACCORDANCE WITH PURCHASE DESCRIPTION DATED JUNE 6, 1956.

IT IS STATED IN YOUR LETTER THAT THE ADVERTISED SPECIFICATIONS WERE VERY SIMILAR TO THOSE ISSUED FROM TIME TO TIME IN THE PAST ON WHICH FOUNTAINS WERE PROCURED FOR THE MARINE CORPS AND THAT, IN YOUR OPINION, THE ADVERTISED SPECIFICATIONS WERE NOT RESTRICTIVE IN THAT THEY SPECIFIED THAT THEY WERE TO BE CONSIDERED DESCRIPTIVE AND NOT RESTRICTIVE WITH THE FURTHER STIPULATION "OR EQUAL.' YOU STATE FURTHER THAT YOU RECEIVED, IN ADVANCE, VERBAL ASSURANCES THAT DUNHILL FOUNTAINS WOULD RECEIVE CONSIDERATION ON A PAR WITH ANY OTHER MAKE IF THEY COMPLIED ESSENTIALLY WITH THE REQUIREMENTS FOR QUALITY AND SERVICEABILITY. FINALLY, YOU STATE THAT YOU FEEL THAT OUR DECISION DID NOT CLARIFY ALL THE FACTS NOR ELIMINATE ALL DOUBT OF WRONGFUL ABUSE OF DISCRETIONARY POWERS IN THIS CASE.

AS YOU WERE ADVISED IN OUR DECISION OF JULY 27, 1956, THE DEPARTMENT OF THE NAVY REPORTED THAT IT WAS DETERMINED THAT PATENTED FEATURES OF THE EQUIPMENT SPECIFIED UNDER THE INVITATION (BASTIAN BLESSING OR EQUAL IN DESIGN, METALS AND CONSTRUCTION) WERE REVEALED SUBSEQUENT TO THE OPENING OF BIDS AND AS A CONSEQUENCE NO AWARD WAS MADE. THESE PATENTED FEATURES ARE REPORTED TO HAVE RESTRICTED COMPETITION. IT IS NOW REPORTED INFORMALLY BY THE DEPARTMENT OF THE NAVY THAT THE PURCHASE DESCRIPTION WOULD HAVE PERMITTED ACCEPTANCE OF BASTIAN-BLESSING COMPANY EQUIPMENT ONLY AND THAT DUNHILL FOUNTAINS WOULD NOT HAVE BEEN ACCEPTABLE AS MEETING THE ADVERTISED REQUIREMENTS. ALSO, IT IS STATED THAT AT LEAST ONE OF THE PRINCIPAL FEATURES OF THE FOUNTAINS DESCRIBED IN THE PURCHASE DESCRIPTION IS COVERED BY BASTIAN-BLESSING PATENT.

YOU DO NOT FURNISH ANY INFORMATION AS TO THE SPECIFICATIONS TO WHICH YOU REFER AS HAVING BEEN USED IN THE PAST. THE USE OF SUCH SPECIFICATIONS, HOWEVER, IF ERRONEOUS, WOULD NOT JUSTIFY THEIR USE IN THIS CASE. MOREOVER, THE DUTY OF MAKING DETERMINATIONS AS TO WHETHER ALL BIDS SHOULD BE REJECTED IN THE PUBLIC INTEREST LIES WITH THE ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY AND, IN THE ABSENCE OF CLEAR PROOF OF ABUSE OF THEIR DISCRETIONARY POWERS IN THAT REGARD, WE WOULD NOT UNDERTAKE TO INTERFERE WITH ACTION BASED UPON SUCH A DETERMINATION. IN THIS CASE, THE CONTRACTING OFFICIALS OF THE MARINE CORPS DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND TO READVERTISE ON THE BASIS OF REVISED AND NON RESTRICTIVE SPECIFICATIONS. THIS ACTION WAS IN ACCORDANCE WITH THE RIGHT RESERVED BY THE GOVERNMENT IN THE INVITATION FOR BIDS AND THE PROVISIONS OF SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21. THE EXERCISE OF THE RIGHT TO REJECT ALL BIDS AND READVERTISE IS NOT SUBJECT TO REVIEW BY OUR OFFICE, IN THE ABSENCE OF FRAUD OR BAD FAITH AMOUNTING TO FRAUD. HERE THE ADMINISTRATIVE ACTION APPEARS TO HAVE BEEN TAKEN IN GOOD FAITH AND WE DO NOT FIND ANY LEGAL BASIS FOR QUESTIONING THAT ACTION.