B-135393, MAY 29, 1958

B-135393, MAY 29, 1958

TO HERRICK L. JOHNSTON, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1958, WITH ENCLOSURE, CONCERNING OUR DECISION OF MARCH 28, 1958, TO YOU, WHEREIN WE FOUND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO THE CAMBRIDGE CORPORATION UNDER INVITATION FOR BIDS NO. IFB-33-600-58-124, ISSUED ON DECEMBER 23, 1957, BY THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FOR THE FURNISHING OF A QUANTITY OF SEMI-TRAILER TANKS FOR THE TRANSPORTATION OR STORAGE OF LIQUID OXYGEN OR NITROGEN. YOU REQUEST RECONSIDERATION OF OUR DECISION ON THE BASIS THAT THE REPORT OF THE DEPARTMENT IS A "WHITEWASH" OF THE ACTION TAKEN BY THE PROCUREMENT AGENCY.

IT IS ARGUED THAT SINCE FIXED PRICES WERE REQUESTED, IT WAS IMPROPER FOR THE PROCUREMENT AGENCY TO EVALUATE CAMBRIDGE'S BID WHICH WAS QUALIFIED BY THE INCLUSION OF AN ESCALATION CLAUSE RESPECTING THE COST OF ROAD ENDURANCE TESTING. THE ENCLOSURE ACCOMPANYING YOUR LETTER CONTAINS AN OPINION BY YOUR ATTORNEY THAT THE CITATIONS IN OUR DECISION (35 COMP. GEN. 684; 36 ID. 259) ARE DISTINGUISHABLE FROM THE INSTANT MATTER IN THAT "NO DEFINITE AMOUNT WAS SET FOR ROAD TESTING AND ACCORDINGLY THERE WAS NO FIRM BID FROM WHICH A MAXIMUM PRICE COULD BE DETERMINED.'

WHILE THE ADMINISTRATIVE REPORT FURNISHED IN THIS CASE DID NOT COMMENT SPECIFICALLY ON THE PURPORTED STATEMENT OF THE CONTRACTING OFFICER THAT "CAMBRIDGE'S BID WAS NOT FIRM AND WAS DISQUALIFIED," WE CANNOT AGREE THAT THE REPORT WAS FACTUALLY INADEQUATE OR BIASED. THE FACT THAT THE CONTRACTING OFFICER MAY HAVE MADE SUCH A STATEMENT COULD HAVE NO LEGAL SIGNIFICANCE OR BE REGARDED AS EVIDENCING A LEGAL CONCLUSION THAT CAMBRIDGE'S BID WAS NONRESPONSIVE. THE QUESTION WHETHER AN AWARD LEGALLY COULD BE MADE TO CAMBRIDGE UNDER THE COMPETITIVE BID STATUTE WAS FOR DETERMINATION BY OUR OFFICE ON THE BASIS OF THE EVIDENCE OF RECORD. THE REPORT, AS SUPPORTED BY DOCUMENTARY DATE, CONTAINED ALL THE PERTINENT INFORMATION NECESSARY FOR OUR OFFICE TO RENDER AN AUTHORITATIVE DECISION ON THE MATTER.

ALTHOUGH THE DECISIONS CITED IN OUR DECISION OF MARCH 28, 1958, INVOLVE SITUATIONS NOT EXACTLY SIMILAR TO THIS CASE, THE RATIONALE OF THOSE DECISIONS ARE FOR APPLICATION HERE. FOR PURPOSES OF EVALUATING CAMBRIDGE'S BID, IT WAS ENTIRELY PROPER FOR THE PROCUREMENT AGENCY TO REGARD THE QUALIFYING STATEMENT AS AN ESCALATION PROVISION WHICH COULD NOT POSSIBLY CAUSE THE PRICE TO APPROACH EVEN A THEORETICAL MAXIMUM CEILING MUCH LESS THAN THE AMOUNT OF THE NEXT LOWEST BID.

ACCORDINGLY, ON THE PRESENT RECORD, THE DECISION OF MARCH 28, 1958, MUST BE AND IS SUSTAINED.