B-137618, JUN 23, 1959

B-137618: Jun 23, 1959

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10. AS YOU WERE PREVIOUSLY ADVISED. THE SECRETARY OF THE AIR FORCE WAS REQUESTED TO FURNISH A REPORT CONCERNING THE "SUBSTANTIAL EVIDENCE" SUBMITTED BY MR. PEDERSEN TO SHOW THAT THE JOINT VENTURE WAS FINANCIALLY CAPABLE AND HAD THE TECHNICAL FACILITIES TO PERFORM THE SALES CONTRACT. WHICH IS A CLASSIFIED DOCUMENT AND THEREFORE SUBJECT TO THE PRESCRIBED PROCEDURES FOR SAFEGUARDING NATIONAL SECURITY INFORMATION. CONCLUSIVELY ESTABLISHES THAT THE ADMINISTRATIVE DETERMINATION TO REJECT THE BID OF THE JOINT VENTURE WAS ENTIRELY PROPER. PEDERSEN AND WE BELIEVE THAT THE RECORD MUST BE ACCORDED FINALITY SO FAR AS THE MATTER OF RESPONSIBILITY IS CONCERNED.

B-137618, JUN 23, 1959

PRECIS-UNAVAILABLE

O. P. EASTERWOOD, JR., ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1959, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF LEROY PEDERSEN AGAINST THE AWARD OF A SALES CONTRACT TO THE HUGO NOU CORPORATION UNDER INVITATION FOR BIDS NO. 64-709-S-58-4, ISSUED BY THE SOUTHERN AIR MATERIAL AREA, CLARK AIR FORCE BASE, PHILIPPINE ISLANDS, ON FEBRUARY 6, 1958.

AS YOU WERE PREVIOUSLY ADVISED, THE SECRETARY OF THE AIR FORCE WAS REQUESTED TO FURNISH A REPORT CONCERNING THE "SUBSTANTIAL EVIDENCE" SUBMITTED BY MR. PEDERSEN TO SHOW THAT THE JOINT VENTURE WAS FINANCIALLY CAPABLE AND HAD THE TECHNICAL FACILITIES TO PERFORM THE SALES CONTRACT. THE SUPPLEMENTAL REPORT HAS BEEN CAREFULLY REVIEWED IN THE LIGHT OF THE ARGUMENTS ADVANCED AND THE EVIDENCE SUBMITTED BY MR. PEDERSEN. HOWEVER, WE REMAIN OF THE OPINION THAT NO BASES EXIST, EITHER IN FACT OR LAW, FOR QUESTIONING THE AWARD AS MADE.

THE ADMINISTRATIVE REPORT, WHICH IS A CLASSIFIED DOCUMENT AND THEREFORE SUBJECT TO THE PRESCRIBED PROCEDURES FOR SAFEGUARDING NATIONAL SECURITY INFORMATION, CONCLUSIVELY ESTABLISHES THAT THE ADMINISTRATIVE DETERMINATION TO REJECT THE BID OF THE JOINT VENTURE WAS ENTIRELY PROPER. THE RECORD AS SUPPLEMENTED SPECIFICALLY CONSIDERED THE ARGUMENTS AND EVIDENCE PRESENTED BY MR. PEDERSEN AND WE BELIEVE THAT THE RECORD MUST BE ACCORDED FINALITY SO FAR AS THE MATTER OF RESPONSIBILITY IS CONCERNED. CASES SIMILAR TO THE ONE HERE INVOLVED, WE INVARIABLY ACCEPT THE ADMINISTRATIVE REPORT OF BID REJECTION WHEN IT IS CLEARLY DEMONSTRATED THEREBY THAT THE REPORTED ACTION WAS TAKEN IN GOOD FAITH AND IS FULLY SUPPORTED BY THE RECORD.

WHILE WE MAY NOT FULLY DISCUSS THE MERITS OF MR. PEDERSEN'S PROTEST IN THE LIGHT OF THE CLASSIFICATION OF THE ADMINISTRATIVE REPORT, WE ARE QUITE SURE THAT YOU WILL AGREE THAT TO DO OTHERWISE WOULD CONTRAVENE THE EXPRESS PROHIBITIONS AGAINST THE RELEASE OF CLASSIFIED INFORMATION AS CONTAINED IN SECTION 7 OF EXECUTIVE ORDER 10501 DATED NOVEMBER 5, 1953, 3 CFR 983 AND 984, 1949-1953 COMPILATION.

ACCORDINGLY, WE REMAIN OF THE VIEW THAT THE REJECTION OF THE BID OF THE JOINT VENTURE WAS NOT IMPROPER UNDER THE CIRCUMSTANCES THERE PRESENT.