B-145363, MAY 24, 1961

B-145363: May 24, 1961

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TO BRAMSON ENGINEERING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 15. THAT RESTRICTIVE DELIVERY CONDITIONS HAVE PRECLUDED YOU FROM BIDDING ON SEVERAL PROCUREMENTS. PROPOSALS WERE SOUGHT ON THE FURNISHING OF 396 MECHANICAL REFRIGERATORS. IN RESPONSE THERETO FIVE BIDS WERE RECEIVED RANGING FROM $350 TO $430 PER UNIT. AWARD WAS MADE TO AEROSONIC CORPORATION OF CLEARWATER. DELIVERY THEREOF WAS REQUIRED NOT LATER THAN JUNE 1961. SINCE THE DELIVERY REQUIREMENTS WERE NOT CONSIDERED UNDULY RESTRICTIVE BY THE FIVE SMALL BUSINESS CONCERNS WHICH RESPONDED TO THE INVITATION. SUCH MATTERS ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED AND. THERE IS NO INDICATION OF FAVORITISM OR PERSONAL PREJUDICE IN THE TRANSACTION.

B-145363, MAY 24, 1961

TO BRAMSON ENGINEERING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1961, WITH ENCLOSURE, PROTESTING AGAINST THE DELIVERY REQUIREMENTS MADE A PART OF CERTAIN RECENT BID INVITATIONS ISSUED BY THE MILITARY MEDICAL SUPPLY AGENCY, INCLUDING INVITATION FOR BIDS NO. 32-249-61. YOU ALLEGE, IN SUBSTANCE, THAT RESTRICTIVE DELIVERY CONDITIONS HAVE PRECLUDED YOU FROM BIDDING ON SEVERAL PROCUREMENTS, AND YOU REQUEST THAT IN THIS CASE A MORE REALISTIC DELIVERY REQUIREMENT BE SUBSTITUTED FOR THE PERFORMANCE TIME STIPULATED.

THE RECORD SHOWS THAT UNDER THE SAID INVITATION DATED FEBRUARY 21, 1961, PROPOSALS WERE SOUGHT ON THE FURNISHING OF 396 MECHANICAL REFRIGERATORS, AT AN ESTIMATED COST OF $455 EACH, WITH DELIVERY REQUESTED IN MAY 1961, AND REQUIRED DELIVERY DURING JUNE. PARAGRAPH 11.1-1A OF THE CONDITIONS RESTRICTED AWARD TO SMALL BUSINESS CONCERNS. IN RESPONSE THERETO FIVE BIDS WERE RECEIVED RANGING FROM $350 TO $430 PER UNIT, NO ONE OF WHICH TOOK ANY EXCEPTION TO THE DELIVERY REQUIREMENTS SPECIFIED. ON THE BASIS OF A PRE-AWARD SURVEY, WHICH DISCLOSED THAT THE LOW BIDDER HAS THE CAPACITY TO PRODUCE AT LEAST EIGHT UNITS PER WORKING DAY, AWARD WAS MADE TO AEROSONIC CORPORATION OF CLEARWATER, FLORIDA.

WHILE THIS PROCUREMENT APPEARS TO INVOLVE A PURCHASE OF STOCK ITEMS AS TO WHICH TIME, NORMALLY, WOULD NOT BE A MATERIAL FACTOR, THE RECORD SHOWS THAT BECAUSE OF THE EXISTING INVENTORY, AND THE CURRENT DEMAND FOR THE REFRIGERATORS FOR USE WITH FIELD HOSPITAL TYPE ASSEMBLAGES, DELIVERY THEREOF WAS REQUIRED NOT LATER THAN JUNE 1961. IN VIEW THEREOF, AND SINCE THE DELIVERY REQUIREMENTS WERE NOT CONSIDERED UNDULY RESTRICTIVE BY THE FIVE SMALL BUSINESS CONCERNS WHICH RESPONDED TO THE INVITATION, WE DO NOT FEEL DISPOSED TO RAISE ANY QUESTION WITH RESPECT TO THOSE TERMS. SUCH MATTERS ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE PERFORMANCE PERIOD STIPULATED. THERE IS NO INDICATION OF FAVORITISM OR PERSONAL PREJUDICE IN THE TRANSACTION, AND THEREFORE THE EXERCISE OF SUCH DISCRETION IS NOT SUBJECT TO MODIFICATION BY US.

IN VIEW THEREOF, THERE IS NO LEGAL BASIS UPON WHICH WE COULD DIRECT THAT THE DELIVERY CONDITIONS OF THE SUBJECT INVITATION BE RELAXED AS YOU HAVE REQUESTED AND, ACCORDINGLY, YOUR PROTEST MUST BE DENIED.