B-149843, NOV. 5, 1962

B-149843, NOV. 5, 1962

TO MR. G. ROSEKILLY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1962, IN WHICH YOU PROTEST THE TYPE OF DIESEL ENGINES BEING PROCURED BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT, DEPARTMENT OF STATE, FOR USE IN VIETNAM.

THE OFFICE OF SMALL BUSINESS, AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), WASHINGTON, D.C., BY AID SMALL BUSINESS CIRCULAR NO. 62-182 DATED AUGUST 2, 1962, ADVISED AMERICAN SUPPLIERS OF THE COMMODITY REQUIREMENTS OF FOREIGN IMPORTERS WHO WERE PURCHASING SUCH COMMODITIES WITH AID FUNDS. THE COMMODITIES WERE LISTED UNDER 17 ITEMS AND ITEM 10 COVERED THE FURNISHING OF THREE TYPES OF DIESEL ENGINES. PROSPECTIVE SUPPLIERS WERE ADVISED IN THE CIRCULAR THAT THE DIESEL ENGINES REQUIRED UNDER ITEM 10 WERE SIMILAR TO "KIRLOSKAR" TYPES AV-1, AV-2, AND B2. THE NAME OF THE BUYER OF THE EQUIPMENT WAS LISTED THEREIN AS BEING J. KIMATRAI AND CO., SAIGON, VIETNAM.

IN THE CIRCULAR, ABOVE ITEMS 9 TO 17 INCLUSIVE, APPEARED THE FOLLOWING "NOTE" WHICH IS, IN PERTINENT PART, AS FOLLOWS:

"THE FOLLOWING IMPORTERS HAVE BEEN GRANTED SUBAUTHORIZATIONS FOR THE PURCHASE OF THE INDICATED COMMODITIES, AND HAVE SUBMITTED THE DETAILS REPRODUCED BELOW. THESE ARE NOT INVITATIONS FOR FORMAL BIDS, BUT ARE MERELY REQUESTS FOR QUOTATIONS. CONTRACTS WILL BE MADE BETWEEN BUYER AND SELLER IN THE USUAL COMMERCIAL MANNER.'

YOU CONTEND THAT THE "KIRLOSKAR" DIESEL ENGINE IS AN UNKNOWN ENGINE NOT AVAILABLE TO AMERICAN SUPPLIERS AND THAT YOU DOUBT THAT THERE EXISTS SUCH AN ENGINE. YOU STATE THAT IT IS YOUR SUSPICION THAT THIS DIESEL ENGINE IS MADE IN ONE COUNTRY, SHIPPED TO VIETNAM, AND THAT THERE THE KIRLOSKAR NAMEPLATE IS ATTACHED TO THE ENGINE BY THE IMPORTER. YOU FURTHER STATE THAT IN THE CIRCULAR IT WAS STATED THAT IF THERE WAS ANYTHING CONTAINED THEREIN WHICH WOULD PREVENT AMERICAN SUPPLIERS FROM SUBMITTING QUOTATIONS, THE OFFICE OF SMALL BUSINESS SHOULD BE INFORMED IMMEDIATELY, AND THAT WHEN YOU INFORMED THE OFFICE OF SMALL BUSINESS THAT THE KIRLOSKAR DIESEL ENGINE WAS AN UNKNOWN ENGINE NOT AVAILABLE TO AMERICAN SUPPLIERS, YOU WERE ADVISED THAT NOTHING COULD BE DONE ABOUT THE SITUATION AND THAT THE BIDDING WOULD CONTINUE.

THE RECORD INDICATES THAT IN RESPONSE TO YOUR LETTER OF SEPTEMBER 1, 1962, AID ADVISED YOU BY LETTER DATED SEPTEMBER 13, 1962, THAT THE KIRLOSKAR ENGINE IS MANUFACTURED BY KIRLOSKAR OIL ENGINES, LTD., AT ELPHINSTONE ROAD, KIRKEE, POORA 3 (INDIA). YOU ALSO WERE ADVISED THAT WITH RESPECT TO THE IMPORT OF KIRLOSKAR ENGINES FOR RESALE BY THE FIRM OF J. KIMATRAI AND CO. IN SAIGON, THE BUYER OF ITEM 10, AID HAD RECENTLY GRANTED A SOLE AGENCY WAIVER TO THAT IMPORTER AT THE REQUEST OF THE MANUFACTURER IN ACCORDANCE WITH THE PROVISIONS OF SUPPLEMENT NO. 2 TO ICA SMALL BUSINESS MEMO NO. 59-3, A COPY OF WHICH IT APPEARS WAS FURNISHED TO YOU. IT ALSO WAS STATED IN THE LETTER OF SEPTEMBER 13, 1962, TO YOU, THAT UNDER THIS PROCEDURE THE REQUIREMENTS OF THE IMPORTER FOR THESE ENGINES WILL NO LONGER BE PUBLISHED IN THE AID SMALL BUSINESS CIRCULAR AND THAT HAD THE REQUEST FROM THE MANUFACTURER BEEN RECEIVED PRIOR TO THE DATE THAT S.B.C. NO. 62-182 WENT TO THE PRINTER, THE ITEM WOULD OBVIOUSLY NOT HAVE BEEN PUBLISHED.

THE AGENCY FOR INTERNATIONAL DEVELOPMENT STATES IN ITS REPORT TO US THAT THE TYPE OF ENGINE DESIRED UNDER ITEM 10 OF THE CIRCULAR WAS DESCRIBED THEREIN IN SUCH TERMS OF HORSEPOWER, CYCLE, SPEED, TYPE, ET CETERA, AS WOULD ENABLE ANY SUPPLIER OF ENGINES MEETING SUCH SPECIFICATIONS TO MAKE AN OFFER WHETHER HE HAD ANY KNOWLEDGE OR NOT OF WHAT WAS "SIMILAR" TO A KIRLOSKAR ENGINE.

THE DIESEL ENGINES REQUIRED UNDER ITEM 10 OF THE CIRCULAR ARE BEING PURCHASED BY THE IMPORTER WITH AID FUNDS. BY REASON OF SECTION 633 (A) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2393 (A), AND EXECUTIVE ORDER NO. 10973, DATED NOVEMBER 3, 1961, AND EXECUTIVE ORDER NO. 10784, DATED OCTOBER 1, 1958, THE AGENCY FOR INTERNATIONAL DEVELOPMENT IS NOT BOUND BY GENERAL PROVISIONS OF LAW REGULATING THE MAKING OF CONTRACTS.