B-152074, OCT. 9, 1963
Highlights
THE FACTS AND CIRCUMSTANCES INVOLVED IN THE PROTEST WERE FULLY SET OUT IN OUR DECISION AND NEED NOT BE REPEATED HERE. THE QUESTION WHETHER KUTHE SUBMITTED A BID CONTINGENT UPON THE USE OF GOVERNMENT PROPERTY ON A RENT- FREE BASIS WAS FULLY CONSIDERED IN OUR DECISION AND WE HELD THAT SUCH BID WAS NOT CONDITIONAL AND. WAS CLEARLY DISTINGUISHABLE FROM 38 COMP. SINCE THE BID OF KUTHE WAS NOT CONTINGENT UPON THE USE OF GOVERNMENT PROPERTY ON A RENT FREE BASIS. IT WAS A RESPONSIVE BID WHICH THE PROCUREMENT OFFICE PROPERLY COULD ACCEPT AS BEING THE LOWEST BID RECEIVED. THE DATE KUTHE ACTUALLY RECEIVED AN EXTENSION OF ITS EXISTING FACILITIES CONTRACT WAS NOT PERTINENT TO THE RESPONSIVENESS OF ITS BID.
B-152074, OCT. 9, 1963
TO TUNG-SOL ELECTRIC, INC.:
BY LETTER DATED SEPTEMBER 3, 1963, YOU REQUESTED RECONSIDERATION OF OUR DECISION DATED AUGUST 30, 1963, WHEREIN WE DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO KUTHE LABORATORIES, INC., UNDER INVITATION FOR BIDS NO. DSA-9-63-420.
THE FACTS AND CIRCUMSTANCES INVOLVED IN THE PROTEST WERE FULLY SET OUT IN OUR DECISION AND NEED NOT BE REPEATED HERE. THE QUESTION WHETHER KUTHE SUBMITTED A BID CONTINGENT UPON THE USE OF GOVERNMENT PROPERTY ON A RENT- FREE BASIS WAS FULLY CONSIDERED IN OUR DECISION AND WE HELD THAT SUCH BID WAS NOT CONDITIONAL AND, ALSO, WAS CLEARLY DISTINGUISHABLE FROM 38 COMP. GEN. 79, CITED BY YOU. SINCE THE BID OF KUTHE WAS NOT CONTINGENT UPON THE USE OF GOVERNMENT PROPERTY ON A RENT FREE BASIS, IT WAS A RESPONSIVE BID WHICH THE PROCUREMENT OFFICE PROPERLY COULD ACCEPT AS BEING THE LOWEST BID RECEIVED. THUS, THE DATE KUTHE ACTUALLY RECEIVED AN EXTENSION OF ITS EXISTING FACILITIES CONTRACT WAS NOT PERTINENT TO THE RESPONSIVENESS OF ITS BID. WHILE WE RECOGNIZED THAT KUTHE'S BID DEVIATED AS TO FORM, ITS BID, IN SUBSTANCE, CONFORMED TO THE ESSENTIAL ADVERTISED REQUIREMENTS.
WE UNDERSTAND THAT AWARD HAS BEEN MADE TO KUTHE ON THE BASIS OF ITS BID SUBMITTED UNDER THE SUBJECT INVITATION. ON THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO KUTHE.