B-150025, DEC. 19, 1962

B-150025: Dec 19, 1962

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TO WILL SCIENTIFIC. (WEST VIRGINIA): FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. TWO OF THE BIDDERS WERE YOUR FIRM AND THE NEW YORK LABORATORY SUPPLY CO. ASPR 2-407.6 EQUAL LOW BIDS PROVIDES IN PERTINENT PART AS FOLLOWS: "/A) (1) WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS. WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS. PREFERENCE SHALL BE GIVEN IN THE FOLLOWING ORDER OF PRIORITY: (I) PERSISTENT LABOR SURPLUS AREA CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS (1-701). (III) SUBSTANTIAL LABOR SURPLUS AREAS CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS. (V) SMALL BUSINESS CONCERNS WHICH DO NOT QUALIFY FOR ANY OF THE FOREGOING PRIORITIES BUT WHICH WILL DELIVER THE REQUIRED END ITEMS TO THE GOVERNMENT FROM A PLANT.

B-150025, DEC. 19, 1962

TO WILL SCIENTIFIC, INC. (WEST VIRGINIA):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1962, PROTESTING AGAINST THE AWARD MADE TO THE NEW YORK LABORATORY SUPPLY CO.,INC., UNDER INVITATION NO. CML-18-064-63-9, ISSUED BY THE U.S. ARMY CHEMICAL CORPS BIOLOGICAL LABORATORIES, FORT DETRICK, FREDERICK, MARYLAND.

THE INVITATION, AS AMENDED, REQUESTED BIDS TO BE OPENED ON SEPTEMBER 6, 1962, FOR FURNISHING ONE RECORDING SPECTROPHOTOMETER. OF THE TEN BIDS RECEIVED, EIGHT CONTAINED THE IDENTICAL PRICE OF $8,380. TWO OF THE BIDDERS WERE YOUR FIRM AND THE NEW YORK LABORATORY SUPPLY CO., INC. EACH OF THE TIED BIDDERS OFFERED THE ITEM AS MANUFACTURED BY BECKMAN INSTRUMENT COMPANY OF FULLERTON, CALIFORNIA.

ASPR 2-407.6 EQUAL LOW BIDS PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) (1) WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS, CONSIDERING ALL FACTORS EXCEPT THE PRIORITIES SET FORTH IN (2) BELOW, AWARD SHALL BE MADE IN ACCORDANCE WITH THE ORDER OF PRIORITIES THEREIN. WHERE TWO OR MORE LOW BIDS ARE EQUAL IN ALL RESPECTS, CONSIDERING ALL FACTORS INCLUDING THE PRIORITIES SET FORTH IN (2) BELOW, AWARD SHALL BE MADE BY A DRAWING BY LOT WHICH SHALL BE WITNESSED BY AT LEAST THREE PERSONS AND WHICH MAY BE ATTENDED BY THE BIDDERS OR THEIR REPRESENTATIVES, SUBJECT TO (3) BELOW.

"/2) FOR THE PURPOSES OF (1) ABOVE, PREFERENCE SHALL BE GIVEN IN THE FOLLOWING ORDER OF PRIORITY:

(I) PERSISTENT LABOR SURPLUS AREA CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS (1-701);

(II) OTHER PERSISTENT LABOR SURPLUS AREA CONCERNED;

(III) SUBSTANTIAL LABOR SURPLUS AREAS CONCERNS (1-801) THAT ARE ALSO SMALL BUSINESS CONCERNS;

(IV) OTHER SUBSTANTIAL LABOR SURPLUS AREA CONCERNS;

(V) SMALL BUSINESS CONCERNS WHICH DO NOT QUALIFY FOR ANY OF THE FOREGOING PRIORITIES BUT WHICH WILL DELIVER THE REQUIRED END ITEMS TO THE GOVERNMENT FROM A PLANT, WAREHOUSE, OR OTHER ESTABLISHMENT IN A LABOR SURPLUS AREA AT WHICH THE END ITEMS ARE EITHER PRODUCED OR AVAILABLE FROM STOCKS ON HAND;

(VI) OTHER CONCERNS WHICH DO NOT QUALIFY FOR ANY OF THE FOREGOING PRIORITIES BUT WHICH WILL DELIVER THE REQUIRED END ITEMS TO THE GOVERNMENT FROM A PLANT, WAREHOUSE, OR OTHER ESTABLISHMENT IN A LABOR SURPLUS AREA AT WHICH THE END ITEMS ARE EITHER PRODUCED OR AVAILABLE FROM STOCKS ON HAND;

(VII) OTHER SMALL BUSINESS CONCERNS.

"/3) IF THE APPLICATION OF THE PRIORITIES IN (2) ABOVE RESULTS IN TWO OR MORE BIDDERS BEING ELIGIBLE FOR AWARD, THE AWARD SHALL BE MADE TO THE CONCERN THAT WILL MAKE THE MOST EXTENSIVE USE OF SMALL BUSINESS SUBCONTRACTORS, RATHER THAN BY DRAWING LOTS. IF TWO OR MORE BIDDERS STILL REMAIN ELIGIBLE FOR AWARD, THE AWARD SHALL BE MADE BY A DRAWING BY LOT LIMITED TO SUCH BIDDERS.

"/B) WHEN AWARD IS TO BE MADE BY DRAWING BY LOT AND THE INFORMATION AVAILABLE SHOWS THAT THE PRODUCT OF A PARTICULAR MANUFACTURER HAS BEEN OFFERED BY MORE THAN ONE BIDDER, A PRELIMINARY DRAWING BY LOT SHALL BE MADE TO ASCERTAIN WHICH OF THE BIDDERS OFFERING THE PRODUCT OF A PARTICULAR MANUFACTURER WILL BE INCLUDED IN THE FINAL DRAWING TO DETERMINE THE AWARD.

IT IS REPORTED THAT INASMUCH AS BECKMAN INSTRUMENT COMPANY IS A LARGE BUSINESS CONCERN, PURSUANT TO ASPR 1-701.1 (A) (1) AND 1-701.4, ALL CONCERNS SUBMITTING EQUAL BIDS WERE CONSIDERED AS LARGE BUSINESS FOR PURPOSES OF EVALUATION; THAT THE ORDER OF PREFERENCE AS SET FORTH IN ASPR 2-407.6 (A) (2) WAS FOLLOWED TO DETERMINE WHICH BIDDERS SHOULD BE CONSIDERED IN A DRAWING BY LOT; AND THAT AFTER IT WAS DETERMINED THAT THERE WERE BIDDERS ELIGIBLE UNDER THE LABOR SURPLUS AREA PREFERENCE NO. (A) (2) (VI), THE U.S. DEPARTMENT OF LABOR AUGUST 1962 SUPPLEMENT TO AREA LABOR MARKET TRENDS WAS CONSULTED TO DETERMINE THE CONCERNS WHICH WOULD QUALIFY AS BEING IN LABOR SURPLUS AREAS. IT WAS DETERMINED THAT FIVE BIDDERS, INCLUDING YOUR FIRM AND THE NEW YORK LABORATORY SUPPLY CO., INC., QUALIFIED AS BEING IN LABOR SURPLUS AREAS. AS A RESULT OF A DRAWING BY LOT, AWARD WAS MADE ON SEPTEMBER 19, 1962, TO THE NEW YORK LABORATORY SUPPLY CO., INC., AND PURCHASE ORDER NO. FD3-966 WAS ISSUED REQUESTING DELIVERY OF THE INSTRUMENT.

BY LETTER DATED SEPTEMBER 26, 1962, ADDRESSED TO OUR OFFICE, YOU PROTESTED THE MANNER IN WHICH THE CONTRACT WAS AWARDED TO THE NEW YORK LABORATORY SUPPLY CO., INC. UPON BEING ADVISED BY OUR OFFICE OF THE RECEIPT OF A PROTEST FROM YOUR FIRM, THE CONTRACTING OFFICER INVESTIGATED THE CIRCUMSTANCES SURROUNDING THE AWARD AND DISCOVERED THAT IT HAD BEEN IMPROPERLY MADE TO THE NEW YORK LABORATORY SUPPLY CO., INC., BECAUSE THAT CORPORATION WAS NOT IN A LABOR SURPLUS AREA AND, THEREFORE, WAS INELIGIBLE FOR THE DRAWING BY LOT. IN REGARD TO THE CORPORATION'S INELIGIBILITY, THE CONTRACTING OFFICER STATES IN HIS REPORT THAT, WHILE THE CORPORATION DID INDICATE IN ITS BID THAT IT WAS LOCATED IN A LABOR SURPLUS AREA, AN INVESTIGATION SHOWED THAT THE CORPORATION WAS LOCATED IN A GROUP "C" MODERATE UNEMPLOYMENT AREA. THE REPORT ALSO INDICATES THAT ONLY YOUR FIRM AND THE FISHER SCIENTIFIC COMPANY SHOULD HAVE BEEN ELIGIBLE IN THE DRAWING.

NOTWITHSTANDING THESE FACTS, HOWEVER, SINCE IT IS REPORTED BY THE DEPARTMENT OF THE ARMY THAT THE NEW YORK LABORATORY SUPPLY CO., INC., HAS ALREADY DELIVERED THE SPECTROPHOTOMETER TO FORT DETRICK AND SINCE AWARD WAS MADE AT A PRICE NO HIGHER THAN THAT SUBMITTED BY ANY OTHER BIDDER, IT IS OUR OPINION THAT WE WOULD NOT BE JUSTIFIED IN DIRECTING CANCELLATION OF THE CONTRACT. YOUR REQUEST MUST THEREFORE BE DENIED.