B-162922, MAR 11, 1974

B-162922, MAR 11, 1974

EQUAL PROTECTION CLAUSE OF 14TH AMENDMENT OF UNITED STATES CONSTITUTION HAS NO APPLICATION TO SALE OF STEEL BARS BY FEDERAL GOVERNMENT, SINCE AMENDMENT APPLIES ONLY TO ACTIONS OF STATE GOVERNMENTS. SEE CASE CITED.

TO SURPLUS TIRE SALES:

SURPLUS TIRE SALES HAS REQUESTED THAT WE RECONSIDER DECISION B-162922 OF OCTOBER 30, 1973, WHEREIN WE HELD PROPER A SET-OFF AGAINST SURPLUS TIRE SALES IN THE SUM OF $162.86 FOR AN OVERAGE OF 420 POUNDS OF STEEL BARS AT $0.31153 PER POUND WHICH WAS DELIVERED TO B & J METALS COMPANY UNDER SALES CONTRACT NO. 44-8035-102. SURPLUS TIRE SALES WAS A JOINT VENTURER WITH B & J METALS UNDER THAT CONTRACT.

IT IS NOTED BY SURPLUS TIRE SALES THAT THE STEEL BARS WERE OFFERED FOR SALE BY THE GOVERNMENT ON AN "EACH" BASIS RATHER THAN ON A POUND, FOOT, OR ANY OTHER BASIS, AND THAT ACCORDINGLY, THE GOVERNMENT WAS BOUND TO DISREGARD ANY BID SUBMITTED ON ANY BASIS OTHER THAN AN "EACH" BASIS. BECAUSE B & J METALS SUBMITTED ITS BID ON A POUND BASIS, SURPLUS TIRE SALES CONTENDS THAT IT SHOULD HAVE BEEN DISREGARDED AS NONRESPONSIVE TO THE TERMS OF THE SALE. HOWEVER, INASMUCH AS B & J METALS DID SUBMIT A TOTAL PRICE FOR THE LOT (COMPUTED BY MULTIPLYING THE NUMBER OF BARS BY THEIR ESTIMATED WEIGHT AND BY THE PRICE PER POUND OFFERED), SURPLUS TIRE SALES BELIEVES IT WAS INCUMBENT UPON THE GOVERNMENT TO ACCEPT THAT PRICE FOR EVALUATION PURPOSES, TO IGNORE AND THEREBY DELETE FROM THE BID THE PER POUND PRICE, AND TO COMPUTE THE "EACH" PRICE BY DIVIDING B & J METALS' TOTAL PRICE BY THE NUMBER OF STEEL BARS OFFERED FOR SALE. THE LATTER WAS NOT DONE. RATHER, THE CONTRACT WAS AWARDED TO B & J METALS ON THE BASIS OF ITS PER POUND PRICE. CONSEQUENTLY, IT IS SURPLUS TIRE SALES BELIEF THAT SUCH AWARD ON A PER POUND BASIS RATHER THAN ON AN "EACH" BASIS AS PROVIDED FOR BY THE INVITATION WAS AN UNCONSTITUTIONAL UNEQUAL APPLICATION OF THE LAWS (I.E., SALES TERMS AND CONDITIONS) IN VIOLATION OF THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES, BECAUSE ALL OTHER BIDDERS HAD THEIR BIDS CONSIDERED WITHIN THE FRAMEWORK OF THE TERMS OF THE SALE WHEREAS B & J METALS' BID WAS CONSIDERED OUTSIDE THE FRAMEWORK OF THOSE TERMS.

THE RECORD SHOWS THAT THE B & J METALS BID WAS INITIALLY REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE. HOWEVER, WE SUSTAINED B & J'S PROTEST WHICH ASSERTED THE RESPONSIVENESS OF ITS BID. AS A RESULT A PRIOR AWARD TO ANOTHER FIRM WAS CANCELED IN FAVOR OF AN AWARD TO B & J. IN OUR JUDGMENT, SURPLUS TIRE SALES, A JOINT VENTURER WITH B & J IN THE SALE, HAS NO BASIS TO COMPLAIN THAT THE LAWS WERE UNEQUALLY APPLIED AGAINST IT IN THIS CASE. IN ANY EVENT, THE 14TH AMENDMENT MAY BE INVOKED ONLY IN INSTANCES WHERE IT IS ALLEGED THAT THE ACTIONS OF A "STATE" HAVE DEPRIVED A PERSON OF THE EQUAL PROTECTION OF THE LAWS. RICE V. SIOUX CITY CEMETERY, 349 U.S. 70, 72 (1954). THEREFORE, THE PRIOR DECISION IS SUSTAINED.