B-124708, SEP. 15, 1955

B-124708: Sep 15, 1955

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TO BURTON'S FUNERAL HOME: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION OF THE VETERANS ADMINISTRATION IN AWARDING A CONTRACT TO MCKENZIE'S FUNERAL HOME. THE BASIS OF YOUR PROTEST IS THAT THE FACILITIES OF YOUR ESTABLISHMENT EXCEED THOSE OF THE SUCCESSFUL BIDDER IN APPEARANCE AND DESIRABILITY OF LOCATION AND THAT YOUR ROLLING STOCK IS COMPARABLE TO ANY IN THE CITY OF TUSKEGEE. IN VIEW OF THESE CONTENTIONS AND SINCE YOUR BID WAS THE LOWEST RECEIVED AS TO PRICE. YOU FEEL THAT YOUR BID WAS NOT ACCORDED FAIR AND PROPER CONSIDERATION WITHIN THE PURVIEW OF THE APPLICABLE GOVERNMENT PROCUREMENT LAWS AND REGULATIONS. IT IS THE POLICY OF THE VETERANS ADMINISTRATION TO AWARD CONTRACTS FOR UNDERTAKING SERVICES.

B-124708, SEP. 15, 1955

TO BURTON'S FUNERAL HOME:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION OF THE VETERANS ADMINISTRATION IN AWARDING A CONTRACT TO MCKENZIE'S FUNERAL HOME, TUSKEGEE, ALABAMA, FOR BURIAL SERVICES.

THE BASIS OF YOUR PROTEST IS THAT THE FACILITIES OF YOUR ESTABLISHMENT EXCEED THOSE OF THE SUCCESSFUL BIDDER IN APPEARANCE AND DESIRABILITY OF LOCATION AND THAT YOUR ROLLING STOCK IS COMPARABLE TO ANY IN THE CITY OF TUSKEGEE. IN VIEW OF THESE CONTENTIONS AND SINCE YOUR BID WAS THE LOWEST RECEIVED AS TO PRICE, YOU FEEL THAT YOUR BID WAS NOT ACCORDED FAIR AND PROPER CONSIDERATION WITHIN THE PURVIEW OF THE APPLICABLE GOVERNMENT PROCUREMENT LAWS AND REGULATIONS.

IN RESPONSE TO OUR REQUEST FOR A REPORT IN THE MATTER,THE ADMINISTRATOR OF VETERANS AFFAIRS HAS REPORTED AS FOLLOWS:

"WITHIN THE $150 ALLOWED BY STATUTE, AND UNDER THE AUTHORITY OF VETERANS REGULATION 9/A), AS AMENDED, (CHAPTER 12, TITLE 38, U.S.C), IT IS THE POLICY OF THE VETERANS ADMINISTRATION TO AWARD CONTRACTS FOR UNDERTAKING SERVICES, AFTER SOLICITATION OF BIDS, ON A QUALITY BASIS TO THE BIDDER DETERMINED BY THE VETERANS ADMINISTRATION AS OFFERING THE MAXIMUM AND MOST ADVANTAGEOUS COMBINATION OF SERVICES, SUPPLIES, ESTABLISHMENT, EQUIPMENT, AND FACILITIES. SEE PARAGRAPH 3, PAGE 6, INVITATION NO. 56-13.

"WITH RESPECT TO THE ABOVE CONTRACT, A COMMITTEE OF THREE QUALIFIED EMPLOYEES WAS SELECTED BY THE MANAGER, VETERANS ADMINISTRATION HOSPITAL, TUSKEGEE, ALABAMA, FOR THE PURPOSE OF DETERMINING WHICH BIDDER SHOULD BE AWARDED THE CONTRACT UNDER THE POLICY INDICATED ABOVE, AND IT WAS THE UNANIMOUS DECISION OF THE COMMITTEE THAT THE BID OF MCKENZIE'S FUNERAL HOME OFFERED THE MOST ADVANTAGEOUS COMBINATION OF SERVICES, SUPPLIES, ESTABLISHMENT, EQUIPMENT, AND FACILITIES. THERE IS ENCLOSED AN EXCERPT FROM THE REPORT OF THE COMMITTEE MADE IN CONNECTION WITH ITS TERMINATION.'

THE REFERRED-TO VETERANS REGULATION 9/A), AS AMENDED, CHAPTER 12A, TITLE 38, U.S. CODE, PROVIDES THAT THE ADMINISTRATOR OF VETERANS AFFAIRS MAY, IN HIS DISCRETION, MAKE CONTRACTS FOR BURIAL AND FUNERAL SERVICES WITHIN THE LIMIT OF THE AMOUNT THEREIN AUTHORIZED WITHOUT REGARD TO THE LAWS REQUIRING ADVERTISEMENT FOR PROPOSALS FOR SUPPLIES AND SERVICES FOR THE VETERANS ADMINISTRATION. UNDER THIS AUTHORITY, THE ELECTION OF THE VETERANS ADMINISTRATION TO ADVERTISE FOR BIDS RATHER THAN TO NEGOTIATE WITH A SINGLE BIDDER DID NOT REQUIRE MAKING AWARD TO THE LOWEST BIDDER, REGARDLESS OF ANY AND ALL CONSIDERATIONS. CONSEQUENTLY, SINCE VETERANS ADMINISTRATION REPORTS THAT THE AWARD WAS MADE TO THE BIDDER OFFERING THE MAXIMUM AND MOST ADVANTAGEOUS COMBINATION OF SERVICES, SUPPLIES, ESTABLISHMENT, EQUIPMENT, AND FACILITIES, AS CONTEMPLATED BY SUCH AUTHORITY, AND SINCE THE CONTRACTING OFFICER NECESSARILY WAS VESTED WITH DISCRETION IN THE MATTER, WE WOULD NOT BE WARRANTED IN QUESTIONING THE AWARD, IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS.