B-144751, MAR. 1, 1961

B-144751, MAR. 1, 1961

TO SOL C. BENNETT AND ASSOCIATES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1961, WITH ENCLOSURES, PROTESTING ON BEHALF OF THE ANTWERP INDUSTRIAL DIAMOND CO. AGAINST THE INDIVIDUAL COMPANY AWARDS MADE UNDER A BARTER FOR INDUSTRIAL DIAMONDS.

YOU REQUESTED THAT OUR OFFICE SET ASIDE ALL ACTIONS TAKEN BY THE COMMODITY CREDIT CORPORATION (CCC) UNDER ITS BARTER REQUESTS OF NOVEMBER 3, 1960, ON THE BASIS THAT OFFERS UPON WHICH AWARDS WERE MADE FAILED TO COMPLY WITH ALL THE TECHNICAL STIPULATIONS OF THE BARTER TENDER.

UNDER DATE OF NOVEMBER 3, 1960, CCC ISSUED AN INFORMATION SHEET ON BARTER FOR INDUSTRIAL DIAMONDS WHICH INVITED OFFERS TO ACCEPT AND EXPORT SURPLUS AGRICULTURAL COMMODITIES IN EXCHANGE FOR CERTAIN CATEGORIES OF DIAMONDS. PAGE 6 OF THE INFORMATION SHEET PROVIDED UNDER "EVALUATION OF OFFERS" A WEIGHTED POINT SYSTEM OF SCORING OFFERS TO DETERMINE THE MOST ACCEPTABLE OFFER PURSUANT TO PUBLISHED CRITERIA. FURTHER, ON THE SAME PAGE, IT WAS STATED THAT SPECIAL OFFERS MIGHT BE SUBMITTED WHICH, IN ADDITION TO RESULTING IN THE EXPORTATION OF SURPLUS AGRICULTURAL COMMODITIES THAT NORMALLY WOULD NOT MOVE INTO FOREIGN MARKETS, WOULD ALSO RESULT IN OTHER SPECIFIC ADVANTAGES TO THE GOVERNMENT, SUCH AS THE SUBSTITUTION OF AGRICULTURAL COMMODITIES FOR DOLLAR PAYMENTS UNDER EXISTING CONTRACTS WITH THE GOVERNMENT. PROVISION ALSO WAS MADE FOR CONSIDERING SPECIAL OFFERS ON THEIR MERITS WITHOUT REFERENCE TO THE NUMERICAL EVALUATION SYSTEM.

IN RESPONSE TO THAT INFORMATION SHEET, CCC RECEIVED 244 DIAMOND BARTER OFFERS TO BE ASSIGNED A NUMERICAL RATING UNDER THE EVALUATION SYSTEM AND THREE SPECIAL BARTER OFFERS. THE ANTWERP INDUSTRIAL DIAMOND CO. SUBMITTED 14 OF THE 244 GENERAL TYPE OF DIAMOND BARTER OFFERS. WITH THE EXCEPTION OF THE THREE SPECIAL OFFERS, ALL OTHER OFFERS INCLUDING THOSE OF ANTWERP INDUSTRIAL DIAMOND CO. WERE ANALYZED AND RATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION SYSTEM AND TABULATED ACCORDING TO NUMERICAL RATING. THESE NUMERICAL RATINGS RANGED FROM A LOW OF 0 POINTS TO A HIGH OF 23 POINTS. AFTER EVALUATING THE VARIOUS OFFERS RECEIVED, 31 LETTERS OF ACCEPTANCE INDICATING CCC'S WILLINGNESS TO EXCHANGE INDUSTRIAL DIAMONDS FOR AGRICULTURAL COMMODITIES, SUBJECT, AMONG OTHER THINGS, TO THE EXECUTION OF MUTUALLY SATISFACTORY BARTER CONTRACTS, WERE MAILED, ON OR BEFORE DECEMBER 29, 1960, TO 16 OF THE OFFERORS WITH THE HIGHEST POINT RATING AND TO ONE OF THE FIRMS SUBMITTING A SPECIAL OFFER. THIS ACTION EXHAUSTED THE ALLOCATION AVAILABLE FOR THE PROCUREMENT OF INDUSTRIAL DIAMONDS, AND NO OFFERS WITH A NUMERICAL RATING OF LESS THAN 18 POINTS COULD BE ACCEPTED. ACCORDINGLY, SINCE THE OFFERS SUBMITTED BY THE ANTWERP INDUSTRIAL DIAMOND CO. HAD NUMERICAL RATINGS RANGING FROM 11.5 TO 16.4 POINTS, THEIR PROPOSALS WERE REJECTED AT THE SAME TIME REJECTIONS WERE MAILED TO OTHER UNSUCCESSFUL OFFERORS ON JANUARY 6, 1961.

ASIDE FROM THE FACT THAT THE AWARDS APPEAR PROPER UNDER THE CIRCUMSTANCES, WE HAVE NO AUTHORITY TO REVIEW THE INSTANT BARTER TRANSACTION ON ITS MERITS.

THE COMMODITY CREDIT CORPORATION CHARTER ACT (15 U.S.C. 714, ET SEQ.) PROVIDES IN SUBSECTION 714B (G) THAT THE CORPORATION "MAY ENTER INTO AND CARRY OUT SUCH CONTRACTS OR AGREEMENTS AS ARE NECESSARY IN THE CONDUCT OF ITS BUSINESS; " AND ALSO THE CORPORATION IS AUTHORIZED BY SUBSECTION 714B (H),"NOTWITHSTANDING ANY OTHER PROVISION OF LAW," TO ACCEPT "STRATEGIC AND CRITICAL MATERIALS PRODUCED ABROAD IN EXCHANGE FOR AGRICULTURAL COMMODITIES ACQUIRED BY THE CORPORATION" UPON "TERMS AND CONDITIONS PRESCRIBED OR APPROVED BY THE SECRETARY OF AGRICULTURE.' MOREOVER, CCC IS VESTED WITH AUTHORITY UNDER SUBSECTION 714B (J) TO "DETERMINE THE CHARACTER OF AND THE NECESSITY FOR ITS OBLIGATIONS AND EXPENDITURES AND THE MANNER IN WHICH THEY SHALL BE INCURRED, ALLOWED, AND PAID," AS WELL AS WITH THE AUTHORITY PURSUANT TO SUBSECTION 714B (K) TO "MAKE FINAL AND CONCLUSIVE SETTLEMENT AND ADJUSTMENT OF ANY CLAIMS BY OR AGAINST THE CORPORATION OR THE ACCOUNTS OF ITS FISCAL OFFICERS.'

IN ADDITION TO THE ABOVE STATUTORY AUTHORIZATIONS, SECTION 303 OF THE AGRICULTURAL TRADE DEVELOPMENT AND ASSISTANCE ACT OF 1954, AS AMENDED, 7 U.S.C. 1692, GRANTS GENERAL AUTHORITY TO THE SECRETARY OF AGRICULTURE TO BARTER OR EXCHANGE AGRICULTURAL COMMODITIES OWNED BY CCC FOR STRATEGIC OR OTHER MATERIALS "WHENEVER HE DETERMINES THAT SUCH ACTION IS IN THE BEST INTEREST OF THE UNITED STATES.' UNDER THE FOREGOING STATUTORY AUTHORITIES, ACTIONS BY CCC ON OFFERS SUBMITTED TO IT UNDER ITS BARTER PROGRAMS ARE FINAL AND CONCLUSIVE ON OUR OFFICE AND WE HAVE NO ALTERNATIVE OTHER THAN TO DENY JURISDICTION IN THE MATTER.