B-130484, MAR. 13, 1957

B-130484: Mar 13, 1957

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CONTENDS THAT THE INVITATION FOR BIDS C-6020 ISSUED BY THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS WAS RESTRICTIVE AND UNFAIR FOR THE REASON THAT THE ENTIRE PROCUREMENT WAS TO BE AWARDED AS A SINGLE LOT. THE POSITION OF THE NACA WAS THAT THE INVITATION WAS ISSUED ON THAT BASIS BECAUSE IT WAS THEIR CONSIDERED JUDGMENT BASED ON OPERATING EXPERIENCE THAT THE PROCUREMENT OF THE EQUIPMENT INVOLVED SHOULD BE MADE UNDER ONE INVITATION AS A COORDINATED SYSTEM IN ORDER TO PLACE RESPONSIBILITY WITH A SINGLE CONTRACTOR FOR INTEGRATING THE VARIOUS COMPONENTS BOTH ELECTRICALLY AND MECHANICALLY INTO A COMPLETE SYSTEM AND TO EXPEDITE UTILIZATION OF THE FACILITY. THE LOWEST OF THE SIX BIDS RECEIVED WAS SUBMITTED BY THE WESTINGHOUSE ELECTRIC CORPORATION.

B-130484, MAR. 13, 1957

TO C. C. ZINGREBE COMPANY:

YOUR LETTER OF FEBRUARY 20, 1957, WITH ENCLOSURE, CONTENDS THAT THE INVITATION FOR BIDS C-6020 ISSUED BY THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS WAS RESTRICTIVE AND UNFAIR FOR THE REASON THAT THE ENTIRE PROCUREMENT WAS TO BE AWARDED AS A SINGLE LOT.

THE POSITION OF THE NACA WAS THAT THE INVITATION WAS ISSUED ON THAT BASIS BECAUSE IT WAS THEIR CONSIDERED JUDGMENT BASED ON OPERATING EXPERIENCE THAT THE PROCUREMENT OF THE EQUIPMENT INVOLVED SHOULD BE MADE UNDER ONE INVITATION AS A COORDINATED SYSTEM IN ORDER TO PLACE RESPONSIBILITY WITH A SINGLE CONTRACTOR FOR INTEGRATING THE VARIOUS COMPONENTS BOTH ELECTRICALLY AND MECHANICALLY INTO A COMPLETE SYSTEM AND TO EXPEDITE UTILIZATION OF THE FACILITY. THE LOWEST OF THE SIX BIDS RECEIVED WAS SUBMITTED BY THE WESTINGHOUSE ELECTRIC CORPORATION, AND WE HAVE BEEN ADVISED THAT AWARD OF THE CONTRACT WAS MADE TO THAT FIRM ON JANUARY 30, 1957. SPECIFICALLY, YOU REQUEST THAT THE AWARD BE CANCELLED AND "SEPARATE INVITATIONS BE ISSUED TO BID ON THE SEPARATE CLASSES OF EQUIPMENT SPECIFIED UNDER SECTION 2 OF THE SPECIFICATIONS" IN ORDER TO PERMIT GREATER PARTICIPATION BY SMALL AND MEDIUM-SIZED CONTRACTORS WHO ARE NOT IN A POSITION TO BID ON ALL OF THE ITEMS IN THE INVITATION.

OUR OFFICE HAS CONSISTENTLY HELD THAT WHEN SPECIFICATIONS REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT FOR A PARTICULAR PURPOSE, AS APPEARS TO BE SO IN THIS CASE, THEY CANNOT BE SAID TO BE UNDULY RESTRICTIVE OF COMPETITION MERELY BECAUSE ONE OR MORE PROSPECTIVE BIDDERS MAY NOT BE IN A POSITION TO MEET THEIR REQUIREMENTS. IN THE PRESENT CASE, IT APPEARS TO BE THE CONSIDERED POSITION OF THE NACA THAT THE INTERESTS OF THE GOVERNMENT REQUIRE THAT THE AWARD UNDER THE INVITATION BE MADE AS A UNIT. SUCH A REQUIREMENT DOES NOT APPEAR UNDULY RESTRICTIVE OF COMPETITION PARTICULARLY IN VIEW OF THE NUMBER OF BIDS RECEIVED.

FURTHER, WE NOTE FROM THE ENCLOSURE AND COPIES OF OTHER CORRESPONDENCE BETWEEN YOU AND NACA THAT AT LEAST THREE OF THE BIDDERS ARE NOT IN A POSITION TO, OR DID NOT INTEND TO, MANUFACTURE ALL OF THE ITEMS THEMSELVES. YOUR ENCLOSURE STATES THAT ONE OF THESE, THE GRAYBAR ELECTRIC COMPANY, IS A DISTRIBUTOR AND DOES NOT MANUFACTURE ANY OF THE EQUIPMENT INVOLVED. SINCE IT IS A DISTRIBUTOR, WE PRESUME THAT THE COMPANY WOULD NOT BE IN A POSITION TO PERFORM THE NECESSARY ELECTRICAL AND ENGINEERING WORK AND WOULD HAVE TO SUBCONTRACT THAT PORTION OF THE CONTRACT. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THERE WAS NO PROHIBITION IN THE INVITATION AGAINST SUBCONTRACTING BY THE SUCCESSFUL BIDDER.

IT IS OUR UNDERSTANDING OF THE MATTER THAT THE ELECTRICAL AND ENGINEERING WORK I.E., THE ASSEMBLY OF THE VARIOUS COMPONENTS, IS A SIGNIFICANT PORTION OF THE WORK REQUIRED UNDER THE CONTRACT. THEREFORE, WE PERCEIVE NO PROPER BASIS FOR REGARDING THE INVITATION AS ONE ESSENTIALLY FOR SUPPLIES WHICH MAY BE OBTAINED BY THE GOVERNMENT FROM A NUMBER OF SOURCES WITHOUT REGARD FOR THE ASSEMBLY WORK INVOLVED.

THE FUNCTIONS OF THIS OFFICE IN SUCH MATTERS ARE LIMITED TO INSURING THAT APPROPRIATED FUNDS ARE SPENT IN ACCORDANCE WITH APPROPRIATE STATUTES AND REGULATIONS. WE CANNOT, NOR ARE WE IN A POSITION TO, QUESTION THE SPECIFICATIONS OR TERMS OF THE INVITATION EXCEPT TO THE EXTENT THAT THEY ARE NOT IN CONFORMITY WITH SUCH STATUTES OR REGULATIONS. ON THE BASIS OF THE FOREGOING, THEREFORE, WE PERCEIVE NO LEGAL GROUND UPON WHICH WE MAY DIRECT CANCELLATION OF THE AWARD ALREADY MADE.