B-145233, MAR. 27, 1961

B-145233, MAR. 27, 1961

TO REGIS MILK COMPANY:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MARCH 2, 1961, WITH ENCLOSURE, ADDRESSED TO THE SUBSISTENCE P AND C OFFICER AT FT. BRAGG, PROTESTING THE AWARD ACTION PROPOSED TO BE TAKEN BY THE ARMY BASE UNDER INVITATION NO. QM/SUB/31-001-61-53.

UNDER DATE OF JANUARY 11, 1961, THE POST QUARTERMASTER, FT. BRAGG, ISSUED INVITATION NO. QM/SUB/31-001-61-53, SOLICITING BIDS FOR CERTAIN QUANTITIES OF VARIOUS TYPES OF DAIRY PRODUCTS IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS, ETC., FOR DELIVERY DURING THE PERIOD DESIGNATED. THE LOWEST AGGREGATE BID RECEIVED FOR GROUP VI--- COVERING ITEMS NOS. 1 THROUGH 18--- WAS FROM THE YADKIN VALLEY DAIRY COOPERATIVE, INC., IN THE REPORTED AMOUNT OF $609,631.80 AND THE NEXT LOW BID FOR THAT GROUP WAS SUBMITTED BY YOU IN THE TOTAL AMOUNT OF $611,020. UPON DETERMINING THE RESPONSIBILITY OF THE YADKIN CORPORATION AN AWARD WAS PROPOSED TO IT FOR GROUP VI BY THE SUBSISTENCE P AND C OFFICER AND FORWARDED TO HEADQUARTERS FOR APPROVAL. THE PROPOSED ACTION PROMPTED YOUR PROTEST SINCE YOU CONTEND THE AWARD SHOULD BE MADE TO YOU FOR ITEMS NOS. 1 AND 3 OF GROUP VI ON THE BASIS THAT YOU HAD SUBMITTED THE LOW BID FOR THESE PARTICULAR ITEMS. FORMAL AWARD OF CONTRACT HAS BEEN WITHHELD PENDING A DETERMINATION OF YOUR PROTEST.

IN YOUR LETTER DATED MARCH 2, 1961, YOU CITE PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS IN SUPPORT OF YOUR PROTEST. YOU REFER MORE SPECIFICALLY TO SUBPARAGRAPH C OF THAT ARTICLE AS THE BASIS FOR MAKING THE AWARD TO YOU OF ITEMS NOS. 1 AND 3 OF GROUP VI.

PARAGRAPH 4 OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDES, IN PERTINENT PART, THAT:

"4. AWARD:

"SEPARATE AWARDS WILL BE MADE ON A LOW AGGREGATE BID BASIS FOR * * * GROUP VI (ITEMS 1 THRU 18). * * *"

THE LANGUAGE SET FORTH IN THIS PARAGRAPH IS CLEAR AND EXPRESSLY PROVIDES THAT AWARDS WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED FOR EACH OF THE GROUPS SPECIFIED. THE DEPARTMENT OF THE ARMY REPORTS THAT THE LOWEST AGGREGATE BID RECEIVED FOR GROUP VI WAS THAT OF THE YADKIN VALLEY DAIRY COOPERATIVE, INC., IN THE AMOUNT OF $609,631.80 WHICH IS REPORTED TO BE $1,388.20 LOWER THAN YOUR BID. THUS, ASSUMING THAT THE YADKIN CORPORATION WAS FOUND TO BE A COMPLETELY RESPONSIVE BIDDER, THE DEPARTMENT OF THE ARMY NOT ONLY IS WARRANTED IN MAKING THE AWARD TO THAT CORPORATION BUT IS, IN FACT, REQUIRED TO DO SO UNDER THE TERMS OF PARAGRAPH 4 OF THE SPECIAL PROVISIONS. TO THE EXTENT THAT THERE MAY APPEAR TO BE SOME CONFLICT REGARDING EVALUATION REQUIREMENTS FOR AWARD BETWEEN PARAGRAPH 4 OF THE SPECIAL PROVISIONS AND PARAGRAPH 8 OF THE GENERAL TERMS AND CONDITIONS, IT IS WELL ESTABLISHED THAT ANY CONFLICT OF THIS KIND MUST BE RESOLVED IN FAVOR OF THE SPECIAL PROVISIONS WHICH ARE, AS IN THIS CASE, MORE SPECIFICALLY DIRECTED TO THE PARTICULAR MATTER INVOLVED.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT OR TO FORMULATE BASES UPON WHICH BID PRICES PROPERLY WILL BE CONSIDERED AND EVALUATED UNDER GIVEN INVITATIONS. THESE MATTERS FALL SQUARELY WITHIN THE FUNCTIONS OF THE DEPARTMENTS AND AGENCIES CONCERNED AND WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION, AS REQUIRED BY APPLICABLE STATUTES AND IT IS SHOWN, WHEN CONSIDERING ALL OF THE FACTS, THAT THE GOVERNMENT'S INTEREST IS FULLY PROTECTED OUR OFFICE WILL NOT INTERVENE. IN THIS REGARD, WE FIND NO ABUSE OF THE DEPARTMENT OF THE ARMY'S AUTHORITY IN SPECIFYING THE PARTICULAR AGGREGATE BID EVALUATION BASIS IN THIS CASE.

ACCORDINGLY, WE MUST CONCLUDE THAT THE AWARD ACTION PROPOSED BY THE DEPARTMENT OF THE ARMY IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.