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B-128336, I-19416, NOV. 9, 1956

B-128336 Nov 09, 1956
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THE EFFRON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 21. N 151S 3168A WAS NEGOTIATED PURSUANT TO THE ARMED SERVICES PROCUREMENT ACT OF 1947 AFTER A REQUEST FOR PROPOSALS HAD BEEN ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD UNDER DATE OF MARCH 7. THE INVITATION WAS SUPPLEMENTED BY MEMORANDUM OF MARCH 22. THE AWARD WAS MADE TO ROSS AND ROSS AUCTIONEERS. THE INVESTIGATION OF YOUR PROTEST DISCLOSES THAT THE QUOTATION OF YOUR FIRM WAS NOT CONSIDERED FOR AWARD BECAUSE OF YOUR FAILURE TO SUBMIT BEFORE THE REVISED OPENING DATE AN EXECUTED SUPPLEMENT AS REQUIRED BY THE SUPPLEMENT SENT OUT ON MARCH 22. A COPY OF WHICH IS UNDERSTOOD TO HAVE BEEN RECEIVED BY YOUR FIRM. WE BELIEVE THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN ASSUMING.

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B-128336, I-19416, NOV. 9, 1956

TO MR. HAROLD J. EFFRON, PRESIDENT, THE EFFRON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 21, 1956, PROTESTING THE DEPARTMENT OF THE NAVY'S AWARD OF A CONTRACT, NO. 151S 3168A, FOR AUCTIONEERING SERVICES PURSUANT TO INVITATION NO. 516-17128 56.

THE ADMINISTRATIVE RECORD REFLECTS THAT THE CONTRACT NO. N 151S 3168A WAS NEGOTIATED PURSUANT TO THE ARMED SERVICES PROCUREMENT ACT OF 1947 AFTER A REQUEST FOR PROPOSALS HAD BEEN ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD UNDER DATE OF MARCH 7, 1956, INVITING THE SUBMISSION OF QUOTATIONS TO BE RECEIVED NOT LATER THAN MARCH 22, 1956. DISCUSSIONS WITH PROSPECTIVE BIDDERS DISCLOSED THAT THE REQUEST SHOULD BE AMENDED TO PROVIDE FURTHER INFORMATION CONCERNING THE SERVICES TO BE PROVIDED UNDER THE PROPOSED CONTRACT, AND THE INVITATION WAS SUPPLEMENTED BY MEMORANDUM OF MARCH 22, 1956, WHICH EXTENDED THE OPENING DATE TO MARCH 29, 1956. THIS MEMORANDUM STATED THAT THE GOVERNMENT RESERVED THE RIGHT TO REJECT QUOTATIONS OF BIDDERS WHICH DID NOT SIGNIFY AGREEMENT TO THE SUPPLEMENT BY THEIR SIGNATURE AND RETURN OF THE MEMORANDUM PRIOR TO THE NEW OPENING DATE. THE SUPPLEMENT STATED FURTHER THAT THE NAVY INTENDED TO EXECUTE THE PROPOSED CONTRACT BY APRIL 1, 1956.

THE ADMINISTRATIVE RECORD FURTHER REFLECTS THAT SIX FIRMS RESPONDED TO THE INITIAL REQUEST, OFFERING PERCENTAGE PRICES RANGING FROM 1.9 PERCENT (OFFERED BY YOUR FIRM) TO 10 PERCENT, AND THREE OF THE SIX RESPONDED IN TURN TO THE AMENDED REQUEST, OFFERING PERCENTAGE RATES IN EACH CASE HIGHER THAN THE FIRST OFFERING. THESE LATTER QUOTATIONS RANGED FROM 2.95 PERCENT TO 3.4 PERCENT. THE AWARD WAS MADE TO ROSS AND ROSS AUCTIONEERS, MINNEAPOLIS, MINNESOTA.

THE INVESTIGATION OF YOUR PROTEST DISCLOSES THAT THE QUOTATION OF YOUR FIRM WAS NOT CONSIDERED FOR AWARD BECAUSE OF YOUR FAILURE TO SUBMIT BEFORE THE REVISED OPENING DATE AN EXECUTED SUPPLEMENT AS REQUIRED BY THE SUPPLEMENT SENT OUT ON MARCH 22, 1956, A COPY OF WHICH IS UNDERSTOOD TO HAVE BEEN RECEIVED BY YOUR FIRM. IN VIEW OF THE FACT THAT MR. HIRSCHBERG ACTUALLY VISITED THE SITE AND INSPECTED THE PROPERTY ON MARCH 28, WITH FULL KNOWLEDGE OF THE SUPPLEMENT, BUT TOOK NO FURTHER ACTION EITHER TO CONFIRM OR AMEND YOUR PREVIOUS PROPOSAL, WE BELIEVE THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN ASSUMING, AS HE APPARENTLY DID AT THE TIME OF THE BID OPENING, THAT YOU HAD WITHDRAWN FROM THE PROCEEDINGS. THE CONTRACTING OFFICER WAS NOT REQUIRED TO CONDUCT NEGOTIATIONS WITH PERSONS WHO HAD NOT COMPLIED WITH THE CONDITIONS ESTABLISHED AS A PREREQUISITE TO HAVING THEIR BIDS CONSIDERED. GIVING FULL CONSIDERATION TO THE FACTS SET OUT IN YOUR PROTEST, WE MUST NEVERTHELESS CONCLUDE THAT THE CONTRACTING OFFICER'S DECISION TO AWARD THE CONTRACT TO ROSS AND ROSS AUCTIONEERS (WHO FURNISHED THE LOWEST QUOTATION IN ACCORDANCE WITH THE TERMS OF THE INVITATION AND SUPPLEMENT) WAS AN ADMINISTRATIVE DECISION WHICH WE MAY NOT QUESTION IN THE ABSENCE OF A SHOWING OF FRAUD, COLLUSION, OR WILLFUL WRONGDOING.

IN THIS CONNECTION, YOUR PROTEST CONTAINED ALLEGATIONS THAT THE ACTIONS OF THE CONTRACTING OFFICER WERE "FRIVILOUS AND CAPRICIOUS" AND REQUESTED THIS OFFICE TO CONDUCT AN INVESTIGATION INTO THE "PREFERENTIAL TREATMENT AND FAVORITISM.' YOU ALSO ALLEGED THAT THE CONTRACT WAS AWARDED ,WITHOUT FOUNDATION IN FACT.' OUR INQUIRY INTO THESE ALLEGATIONS DID NOT SUBSTANTIATE YOUR CHARGES. THE ALLEGED DISCREPANCIES BETWEEN YOUR RECOLLECTION OF THE TELEPHONE CONVERSATIONS AND THE RECORDS AS MAINTAINED BY THE CONTRACTING OFFICER ARE NOT OF SUCH A NATURE AS TO AFFECT THE LEGALITY OF THE AWARD OF THE CONTRACT IN QUESTION, WHICH HAD ALREADY BEEN MADE.

SINCE THE CONTRACT WAS AWARDED LEGALLY, THIS OFFICE CANNOT PROPERLY QUESTION THE AWARD AS MADE, NOR WOULD WE HAVE BEEN JUSTIFIED IN HOLDING UP THE PERFORMANCE OF THE CONTRACT.

WITH REGARD TO THE ALLEGATIONS MADE BY MR. HAROLD K. HIRSCHBERG DURING THE INTERVIEW WITH OUR INVESTIGATOR, YOU MAY BE ASSURED THAT WE WILL INQUIRE INTO THE HANDLING OF THE ADVERTISING BY ROSS AND ROSS AUCTIONEERS AND WILL TAKE WHATEVER ACTION IS APPROPRIATE TO PROTECT THE GOVERNMENT'S INTERESTS.

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