B-163985, MAY 29, 1968

B-163985, MAY 29, 1968

TO MR. D. BAKER:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 3 AND MAY 21, 1968, IN WHICH YOU PROTESTED AGAINST THE ALLEGED CIRCUMVENTION OF THE GENERAL SERVICES ADMINISTRATION'S OBLIGATION TO COMPLY WITH THE TERMS OF YOUR NATIONAL REQUIREMENTS CONTRACT GS-07S-12082, BY ITS ISSUANCE OF INVITATION FOR BIDS NO. FPNGA-M-04709-A-4-17-68. YOUR CONTRACT COVERS THE FURNISHING OF CERTAIN POLYETHYLENE BAGS TO FULFILL REQUIREMENTS FOR THE PRODUCT AT VARIOUS GSA INSTALLATIONS FROM JULY 12, 1967, TO APRIL 30, 1968. PARAGRAPH 5 OF THE CONTRACT'S SPECIAL PROVISIONS RESTRICTED THE MAXIMUM QUANTITY OF ITEMS TO BE ORDERED OR FURNISHED UNDER THE CONTRACT AS FOLLOWS:

"MAXIMUM ORDER LIMITATION: THE TOTAL DOLLAR VALUE OF ANY ORDER PLACED UNDER THIS CONTRACT SHALL NOT EXCEED $25,000.00, PROVIDED THAT THE DOLLAR VALUE FOR ANY SINGLE ITEM ORDERED, WHETHER ORDERED SEPARATELY OR IN COMBINATION WITH OTHER ITEMS, SHALL NOT EXCEED $15,000.00. THE CONTRACTOR AGREES NOT TO ACCEPT OR FULFILL ANY ORDERS IN VIOLATION OF THIS PROVISION. VIOLATION MAY RESULT IN TERMINATION OF THE CONTRACT PURSUANT TO THE CLAUSE OF THE GENERAL PROVISIONS ENTITLED -DEFAULT.-"

THE ITEMS SCHEDULED TO BE PURCHASED UNDER THE ABOVE-CITED IFB ARE LISTED AS 4,500 CARTONS OF POLYETHYLENE BAGS FOR THE GSA SUPPLY DEPOT AT SHELBY, OHIO, AND 4,000 CARTONS OF THE BAGS FOR THE DEPOT AT CLEAR FIELD, UTAH. YOU APPARENTLY BELIEVE THAT THESE REQUIREMENTS SHOULD BE FULFILLED THROUGH ORDERS EXECUTED BY GSA PURSUANT TO ITEMS 118 AND 120 OF YOUR PRESENT CONTRACT. PURCHASE OF THE BAGS ON THIS BASIS, AT THE CONTRACT PRICES, WOULD RESULT IN ORDERS OF $18,405 AND $17,560 FOR THE TWO ITEMS, RESPECTIVELY, BOTH OF WHICH WOULD EXCEED THE SINGLE ITEM LIMITATION OF $15,000 IMPOSED BY YOUR CONTRACT'S SPECIAL PROVISIONS, PARAGRAPH 5. THE CONTRACT CONTAINS NO PROVISION PERMITTING WAIVER OF THE LIMITATION, NOR MAY IT BE EVADED BY INDIRECT MEANS AS BY SPLITTING THE REQUIREMENTS INTO SEVERAL SMALLER ORDERS TO COME WITHIN THE SPECIFIED RESTRICTION. SEE B- 159493, MARCH 28, 1967, COPY ENCLOSED.

WE ARE UNABLE, THEREFORE, TO CONSIDER GSA'S ACTION IN ISSUING THE SUBJECT IFB AS A CIRCUMVENTION OF YOUR PRESENT CONTRACT, AND YOUR PROTEST MUST THEREFORE BE DENIED.