B-134947, AUG. 6, 1958

B-134947: Aug 6, 1958

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ROSEKILLY MACHINERY: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 12. YOU CONTEND THAT YOU WERE ENTITLED TO THE CONTRACT BECAUSE YOUR BID WAS LOWER THAN THE BID ON WHICH THE CONTRACT WAS MADE. THE REPORT FROM THE INTERNATIONAL COOPERATION ADMINISTRATION INDICATES THAT YOUR BID WAS REJECTED BECAUSE IT FAILED TO MEET THE SPECIFICATIONS PRESCRIBED IN THE INVITATION. IT IS REPORTED THAT THE INVESTIGATION MADE BY THAT ADMINISTRATION DOES NOT INDICATE OR SUGGEST ANY IRREGULARITY ON THE PART OF THE GOVERNMENT OF THE REPUBLIC OF VIETNAM WITH RESPECT TO THAT DECISION. IT IS STATED THAT A CAREFUL ANALYSIS OF THE ACTUAL DOCUMENTS SUBMITTED BY BIDDERS AGAINST THE INVITATION HAS ESTABLISHED THAT AWARDS FOR THE FOUR ITEMS UNDER THE INVITATION WERE ACTUALLY MADE TO THE LOWEST RESPONSIVE BIDDER.

B-134947, AUG. 6, 1958

TO G. ROSEKILLY MACHINERY:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 12, 1958, AND PREVIOUS CORRESPONDENCE, PROTESTING THE ACTION OF THE VIETNAM GOVERNMENT IN REFUSING TO MAKE AN AWARD OF A CONTRACT TO YOU UNDER ITS INVITATION NO. 210-19097. YOU CONTEND THAT YOU WERE ENTITLED TO THE CONTRACT BECAUSE YOUR BID WAS LOWER THAN THE BID ON WHICH THE CONTRACT WAS MADE.

THE REPORT FROM THE INTERNATIONAL COOPERATION ADMINISTRATION INDICATES THAT YOUR BID WAS REJECTED BECAUSE IT FAILED TO MEET THE SPECIFICATIONS PRESCRIBED IN THE INVITATION. IT IS REPORTED THAT THE INVESTIGATION MADE BY THAT ADMINISTRATION DOES NOT INDICATE OR SUGGEST ANY IRREGULARITY ON THE PART OF THE GOVERNMENT OF THE REPUBLIC OF VIETNAM WITH RESPECT TO THAT DECISION. IT IS STATED THAT A CAREFUL ANALYSIS OF THE ACTUAL DOCUMENTS SUBMITTED BY BIDDERS AGAINST THE INVITATION HAS ESTABLISHED THAT AWARDS FOR THE FOUR ITEMS UNDER THE INVITATION WERE ACTUALLY MADE TO THE LOWEST RESPONSIVE BIDDER. ON ITEM 1 OF THE INVITATION THERE WERE 34 BIDS RECEIVED. THE SEVEN LOWEST BIDS FAILED TO MEET THE SPECIFICATIONS AND WERE REJECTED. YOUR BID WAS THE SEVENTH LOW BID. ON ITEM 2, 38 BIDS WERE RECEIVED AND THE 16 LOWEST BIDS FAILED TO MEET THE SPECIFICATIONS. YOUR BID ON THIS ITEM WAS SIXTH LOWEST. ON ITEM 3, 34 BIDS WERE RECEIVED AND THE 10 LOWEST BIDS FAILED TO MEET THE SPECIFICATIONS. YOUR BID ON THIS ITEM RANKED NUMBER 9. ON ITEM 4, 29 BIDS WERE RECEIVED AND THE 10 LOWEST BIDS FAILED TO MEET THE SPECIFICATIONS. YOUR BID RANKED NUMBER 24.

THE GENERATORS REQUESTED UNDER ITEMS 1, 2 AND 3 WERE REQUIRED TO BE GENERATORS OF 750 R.P.M. IT APPEARS THAT THE GENERATORS YOU OFFERED WITH 1,500 R.P.M. THUS, IT IS APPARENT THAT THE GENERATORS YOU OFFERED DID NOT MEET THE SPECIFICATIONS.

IT IS ALSO REPORTED THAT THE SPECIFICATIONS PRESCRIBED BY THE GOVERNMENT OF THE REPUBLIC OF VIETNAM ON THIS INVITATION CALLED FOR RELATIVELY SLOW TURNING GENERATORS, FOUND WELL SUITED TO CONDITIONS OF THAT COUNTRY WHEREBY THE EQUIPMENT MAY BE SUBJECTED TO LESS CAREFUL OPERATION THAN IN THE UNITED STATES. SLOW SPEED GENERATORS ARE NOT WIDELY PRODUCED BY AMERICAN MANUFACTURERS ALTHOUGH SOME OF THE BIDS MEETING THE REQUIRED SPECIFICATIONS INDICATED THE SOURCE AS THE UNITED STATES. THE INTERNATIONAL COOPERATION ADMINISTRATION STATED THAT RECOMMENDATIONS ARE NOW BEING DEVELOPED BY THAT AGENCY TO ENCOURAGE THE ESTABLISHMENT OF SPECIFICATIONS THAT ARE MORE IN LINE WITH STANDARD UNITED STATES OUTPUT AND WHICH WILL STILL SERVE THE SPECIAL NEEDS OF THE IMPORTING COUNTRY. ALSO, IT WAS REPORTED THAT THERE WAS NO DELIBERATE INTENT TO RESTRICT BIDDING OPPORTUNITIES BY AMERICAN SUPPLIERS AND THAT THE AWARD DECISIONS REFLECTED EARNEST EFFORTS BY THE VIETNAMESE OFFICIALS TO COMPLY FULLY WITH ICA'S REQUIREMENT FOR PRUDENT PROCUREMENT.

WITH REGARD TO PURCHASES MADE BY OFFICIALS OF THE UNITED STATES, THE COURTS AND ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER EQUIPMENT PROPOSED TO BE FURNISHED BY A SUCCESSFUL BIDDER COMPLIES WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. IN THIS REGARD, ATTENTION IS INVITED TO THE CASE OF O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORP. V. UNITED STATES, 111 F.SUPP. 136; PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113. WHILE IT APPEARS THAT THE ICA HAD AUTHORIZED THE GOVERNMENT OF VIETNAM TO PROCURE THE GENERATORS HERE INVOLVED, THE STANDARDS APPLIED HERE IN THIS PROCUREMENT ARE EQUALLY AS STRINGENT AS IF THE PROCUREMENT HAD BEEN MADE BY UNITED STATES GOVERNMENT OFFICIALS.

THE RECORD SHOWS THAT THE GENERATORS YOU OFFERED DID NOT MEET THE SPECIFICATIONS AND APPEARS TO BE COMPLETELY DEVOID OF ANY EVIDENCE OF FAVORITISM, OR ARBITRARY OR CAPRICIOUS ACTION.

IT MUST BE CONCLUDED, THEREFORE, THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ACTION TAKEN WAS IMPROPER.