B-149321, NOV. 2, 1962

B-149321: Nov 2, 1962

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29. IN RESPONSE TO THE SUBJECT INVITATION FIVE BIDS WERE RECEIVED AND THE RECORD DISCLOSES THAT EXCEPT FOR ONE BIDDER FAILING TO QUOTE A PRICE FOR ITEM NO. 4. ALL BIDS WERE COMPLETELY RESPONSIVE. ALL PROPOSALS WERE WITHIN THE STATUTORY LIMITATIONS FIXED BY THE TERMS OF THE INVITATION. A COMPARISON BETWEEN THE PRICES QUOTED BY CHAMBERS AND UNIVERSAL SHOWS THAT THE FORMER COMPANY WAS SLIGHTLY HIGHER ON FOUR ITEMS THAN YOUR CONCERN AND. WHILE WE HAVE NO KNOWLEDGE AS TO THE TYPE OF SERVICES MOST LIKELY TO BE RENDERED THROUGHOUT THE CONTRACT PERIOD. BOTH BID PRICES ARE WITHIN THE STATUTORY LIMITATIONS. PRICE IS ONLY ONE FACTOR TO BE TAKEN INTO CONSIDERATION IN SELECTING THE CONTRACTOR DEEMED MOST DESIRABLE.

B-149321, NOV. 2, 1962

TO UNIVERSAL FUNERAL HOME, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29, 1962, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE W. W. CHAMBERS COMPANY, INCORPORATED, UNDER INVITATION FOR BIDS NO. 63-8, ISSUED BY VETERANS ADMINISTRATION HOSPITAL (MOUNT ALTO), COVERING FUNERAL SERVICES TO BE RENDERED DURING THE FISCAL YEAR ENDING JUNE 30, 1963.

IN RESPONSE TO THE SUBJECT INVITATION FIVE BIDS WERE RECEIVED AND THE RECORD DISCLOSES THAT EXCEPT FOR ONE BIDDER FAILING TO QUOTE A PRICE FOR ITEM NO. 4, COVERING LOCAL CREMATION SERVICES, ALL BIDS WERE COMPLETELY RESPONSIVE. ALSO, EXCEPT FOR THE PRICE QUOTED ON ONE ITEM IN THE INVITATION, ALL PROPOSALS WERE WITHIN THE STATUTORY LIMITATIONS FIXED BY THE TERMS OF THE INVITATION. A COMPARISON BETWEEN THE PRICES QUOTED BY CHAMBERS AND UNIVERSAL SHOWS THAT THE FORMER COMPANY WAS SLIGHTLY HIGHER ON FOUR ITEMS THAN YOUR CONCERN AND, ON ITEM NO. 3, THE DIFFERENCE AMOUNTED TO $75. UNIVERSAL QUOTED A HIGHER PRICE ON ITEM 2B, AND THE SAME PRICE, OR ,NO CHARGE," AS CHAMBERS ON THE SEVEN REMAINING ITEMS OF THE INVITATION. WHILE WE HAVE NO KNOWLEDGE AS TO THE TYPE OF SERVICES MOST LIKELY TO BE RENDERED THROUGHOUT THE CONTRACT PERIOD, THE ULTIMATE DIFFERENCE IN COST TO THE GOVERNMENT BETWEEN THE TWO BIDS, IN OUR OPINION, WOULD NOT BE SUBSTANTIAL AND, AS PREVIOUSLY STATED, BOTH BID PRICES ARE WITHIN THE STATUTORY LIMITATIONS.

PRICE IS ONLY ONE FACTOR TO BE TAKEN INTO CONSIDERATION IN SELECTING THE CONTRACTOR DEEMED MOST DESIRABLE, FROM THE GOVERNMENT'S POSITION FOR THIS TYPE SERVICE. ALSO FOR CONSIDERATION ARE THE QUANTITY AND QUALITY OF AUTOMOTIVE ROLLING STOCK, AND OTHER FACILITIES SUCH AS A CHAPEL, ORGAN, REPOSING AND EMBALMING ROOMS, AND THE FURNISHING OF CLOTHING AND ACKNOWLEDGMENT CARDS, AS WELL AS THE OPENING AND CLOSING OF GRAVES. ORDER TO OBTAIN THE BEST POSSIBLE SERVICE FOR ITS DECEASED VETERAN PATIENTS, THE HOSPITAL DIRECTOR APPOINTED A COMMITTEE OF FOUR RESPONSIBLE OFFICIALS OF THE INSTITUTION TO INSPECT THE FACILITIES OF THE FIVE RESPONDING BIDDERS. THEIR REPORT DISCLOSES THAT YOU OFFERED BOTH A METAL AND CLOTH COVERED WOOD CASKET THAT COMPLIED WITH THE SPECIFICATIONS AND THAT YOUR FACILITIES AND SERVICES WERE COMPLETELY SATISFACTORY AND MET OR EXCEEDED THE ADVERTISED REQUIREMENTS. HOWEVER, THE RECOMMENDATION CONCLUDING THE SAID REPORT IS AS FOLLOWS:

"OUR RESPONSIBILITY IS TO RECOMMEND THAT FIRM WHOSE SERVICES, FACILITIES AND PERSONNEL COULD BEST SERVE THE DECEASED VETERAN. WE KNOW THAT EACH OF THE ESTABLISHMENTS VISITED HAVE PROFESSIONAL INTEGRITY, QUALIFIED, TRAINED PROFESSIONAL EMBALMERS AND FUNERAL DIRECTORS AND THAT EACH FIRM HAS SERVED HUNDREDS OF FAMILIES IN OUR COMMUNITY IN A HIGHLY SATISFACTORY MANNER. HOWEVER, WHEN WE CONSIDER THAT IT IS OUR DUTY TO RECOMMEND TO YOU THAT FIRM WHOSE TOTAL COMBINATION OF SERVICES WOULD BE MOST BENEFICIAL TO OUR DECEASED VETERANS, THEN WE MUST RECOMMEND THAT THE BID OF W. W. CHAMBERS BE ACCEPTED.'

AS YOU WERE PREVIOUSLY ADVISED INFORMALLY, THE CONTRACT WAS NEGOTIATED PURSUANT TO THE AUTHORITY CONTAINED IN 38 U.S.C. 903, RELATIVE TO THE PAYMENT OF BURIAL AND FUNERAL EXPENSES OF DECEASED VETERANS. SECTION (C) THEREOF PROVIDES THAT--- "WITHIN THE LIMITS PRESCRIBED IN SUBSECTION (A), THE ADMINISTRATOR MAY MAKE CONTRACTS FOR BURIAL AND FUNERAL SERVICES WITHOUT REGARD TO THE LAWS REQUIRING ADVERTISEMENT FOR PROPOSALS FOR SUPPLIES AND SERVICES FOR THE VETERANS' ADMINISTRATION.'

WHILE WE RECOGNIZE THE MERITS OF YOUR CONTENTIONS, SUCH AS THE DIFFERENCE IN PRICES AND THE APPARENTLY PREFERABLE METAL CASKET YOU OFFERED TO FURNISH, WE ARE NOT IN A POSITION TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE EXAMINING COMMITTEE WHO CONDUCTED A THOROUGH INSPECTION OF THE FACILITIES OFFERED BY ALL BIDDERS, AND THEIR EVALUATION OF ALL OF THE ASPECTS OF THE SERVICES AND FACILITIES INVOLVED IN THE CONTRACT. QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. AS TO THIS CASE, IT APPEARS THAT A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY THE RECORD HAS BEEN MADE, WITHOUT ANY EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE.

UNDER THOSE CIRCUMSTANCES, AND IN VIEW OF THE ABOVE-QUOTED STATUTORY AUTHORITY TO NEGOTIATE A CONTRACT FOR THE SERVICES INVOLVED, AS AN EXCEPTION TO THE REQUIREMENTS OF THE COMPETITIVE BIDDING STATUTES, WE FIND NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN.