B-146602, NOV. 13, 1961

B-146602: Nov 13, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 4. YOU STATE THAT YOUR PRICE FOR THE JOB WAS AT LEAST $1. THAT 18 VENDORS WERE REQUESTED TO SUBMIT BIDS BUT THE PROCUREMENT ENDED ITS VOYAGE AS A NEGOTIATED CONTRACT. THE PURCHASE IN QUESTION WAS MADE OUT OF A FUND IN WHICH MONEYS RECEIVED AS SERVICE CHARGES FROM STUDENTS ATTENDING THE AIR UNIVERSITY AT MAXWELL AIR FORCE BASE ARE DEPOSITED. THOSE PRICES DID NOT INCLUDE FLAME PROOFING WHICH WAS OFFERED "AT COST.'. IT WAS THE INTENTION OF THE FUND CUSTODIAN THAT ONLY THE SUCCESSFUL OFFEROR. THEY FELT THAT AN AWARD TO YOUR FIRM WOULD HAVE RESTRICTED THEIR CHOICE TO ONLY ONE MATERIAL FOR ALL THE ROOMS AND BUILDINGS. WE ARE NOT CERTAIN THAT YOUR OFFER WAS IN FACT LOWER THAN THE OFFER OF DEXTER INTERIORS FOR SIMILAR WORK AND MATERIAL.

B-146602, NOV. 13, 1961

TO FORSYTH FABRICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 4, 1961 PROTESTING AN AWARD OF A CONTRACT TO DEXTER INTERIORS, MONTGOMERY, ALABAMA, FOR CUSTOM-MADE DRAPERIES TO BE INSTALLED IN STUDENT DORMITORIES AT MAXWELL AIR FORCE BASE, ALABAMA.

YOU STATE THAT YOUR PRICE FOR THE JOB WAS AT LEAST $1,000 LOWER THAN THAT OF THE SUCCESSFUL BIDDER; THAT THE COMMANDER OF THE MAXWELL AIR FORCE BASE HAS REFUSED TO SHOW YOU A COPY OF THE BID SUBMITTED BY DEXTER INTERIORS OR A SAMPLE OF THE FABRIC USED; THAT 18 VENDORS WERE REQUESTED TO SUBMIT BIDS BUT THE PROCUREMENT ENDED ITS VOYAGE AS A NEGOTIATED CONTRACT; AND THAT YOU SUBMITTED SAMPLES WITH YOUR BID BECAUSE YOU KNEW THAT AN INTELLIGENT DECISION COULD NOT BE REACHED WITHOUT SAMPLES.

THE PURCHASE IN QUESTION WAS MADE OUT OF A FUND IN WHICH MONEYS RECEIVED AS SERVICE CHARGES FROM STUDENTS ATTENDING THE AIR UNIVERSITY AT MAXWELL AIR FORCE BASE ARE DEPOSITED. THE CUSTODIAN AND RECORDER OF THAT FUND SOLICITED OFFERS FOR DRAPERIES IN ACCORDANCE WITH TWO ALTERNATE PLANS. DEXTER INTERIORS MADE AN OFFER UNDER PLAN A IN THE AMOUNT OF $8,952.32 FOR DRAPERIES PLUS $4,783.40 FOR FLAME PROOFING. YOU SUBMITTED 23 SAMPLES UNDER BOTH PLANS A AND B. YOUR QUOTED PRICES FOR DRAPERIES UNDER PLAN A RANGED FROM $6,179.12 TO $9,182.64, WITH THE HIGHEST PRICE BEING BASED UPON USING MATERIAL DESIGNATED AS SAMPLE NO. 15. THOSE PRICES DID NOT INCLUDE FLAME PROOFING WHICH WAS OFFERED "AT COST.'

THE LETTER INVITING QUOTATIONS DID NOT REQUEST SUBMISSION OF SAMPLES OF MATERIALS WITH THE PROPOSALS. IT WAS THE INTENTION OF THE FUND CUSTODIAN THAT ONLY THE SUCCESSFUL OFFEROR, SELECTED ON THE BASIS OF PRICE, WOULD BE REQUIRED TO SUBMIT SAMPLES OF MATERIALS FOR APPROVAL PRIOR TO AWARD. WHEN DEXTER INTERIORS LEARNED THAT YOU HAD SUBMITTED SAMPLES WITH YOUR OFFER, ITS REPRESENTATIVES BROUGHT A LARGE NUMBER OF SAMPLES TO THE MAXWELL AIR FORCE BASE AND OFFERED TO FURNISH DRAPERIES MADE FROM ANY ONE OF THE SAMPLE MATERIALS OR ANY COMBINATIONS OR GROUPS OF SUCH SAMPLES AS SELECTED BY THE FUND OFFICERS. THE FUND COUNCIL THEREUPON DECIDED TO MAKE AN AWARD TO DEXTER INTERIORS UNDER PLAN A, WITH KNOWLEDGE THAT THEY COULD EXERCISE A CHOICE OF DIFFERENT MATERIALS FOR DIFFERENT ROOMS AND BUILDINGS. THEY FELT THAT AN AWARD TO YOUR FIRM WOULD HAVE RESTRICTED THEIR CHOICE TO ONLY ONE MATERIAL FOR ALL THE ROOMS AND BUILDINGS.

WE ARE NOT CERTAIN THAT YOUR OFFER WAS IN FACT LOWER THAN THE OFFER OF DEXTER INTERIORS FOR SIMILAR WORK AND MATERIAL, CONSIDERING THAT YOUR HIGHEST PRICE UNDER PLAN A EXCEEDED DEXTER'S OFFER OF $8,952.32 WITHOUT FLAME PROOFING AND THERE HAS BEEN NO EVIDENCE PRESENTED TO SHOW THAT YOUR COST OF FLAME PROOFING WOULD BE LESS THAN $4,783.40, QUOTED BY DEXTER. WHILE THE FACTS OF THE CASE INDICATE THAT YOU WERE NOT GIVEN A SUBSTANTIALLY EQUAL OPPORTUNITY TO DISCUSS SAMPLES AND PRICES AFTER THE OFFERS WERE RECEIVED, WE ARE ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE PROCUREMENT WAS MADE IN GOOD FAITH. INASMUCH AS THE PURCHASE MONEY BELONGED TO A SPECIAL FUND AND SINCE THE PROVISIONS OF TITLE 10, U.S.C. SETTING FORTH THE MANNER IN WHICH CONTRACTS OF THE MILITARY DEPARTMENTS SHOULD BE AWARDED, ARE APPLICABLE TO CONTRACTS FOR SUPPLIES OR SERVICES ONLY WHEN PAYMENT IS TO BE MADE FROM APPROPRIATED FUNDS (SEE 10 U.S.C. 2303 (A) ( THERE EXISTS NO LEGAL BASIS FOR YOUR PROTEST.

IN THE PARTICULAR CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN TAKING FURTHER ACTION IN THE MATTER.