B-151971, OCT. 3, 1963

B-151971: Oct 3, 1963

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TO AMERICAN FLUORIDE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 2. UNDER ITEM NO. 5 OF THE INVITATION FOR BIDS THERE WAS SET FORTH A REQUIREMENT FOR ZINC PHOSPHIDE. YOUR PROTEST IS BASED UPON AN ALLEGED PLAN OF THE SUCCESSFUL BIDDER TO USE ZINC PHOSPHIDE IMPORTED FROM ITALY AND IT IS ARGUED THAT THE SIMPLE DILUTION OF A HIGHER PERCENTAGE OF ZINC PHOSPHIDE TO 30-PERCENT ZINC PHOSPHIDE DOES NOT RESULT IN A COMMERCIALLY RECOGNIZED NEW COMMODITY THAT IS SUBSTANTIALLY DIFFERENT FROM ITS COMPONENT IN BASIC CHARACTERISTICS. IT IS THE POSITION OF THE GENERAL SERVICES ADMINISTRATION THAT. THE END PRODUCT NEVERTHELESS WOULD HAVE COMPLIED WITH THE SOURCE AND ORIGIN REQUIREMENTS OF THE INVITATION FOR BIDS.

B-151971, OCT. 3, 1963

TO AMERICAN FLUORIDE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1963, PROTESTING THE MAKING OF A CONTRACT AWARD TO GALLARD SCHLESINGER CHEMICIDES, INC., LONG ISLAND, NEW YORK, AS THE LOW BIDDER ON ITEM NO. 5 OF INVITATION FOR BIDS NO. FPNGC-L-29337-A-5-23-63, ISSUED ON MAY 13, 1963, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

UNDER ITEM NO. 5 OF THE INVITATION FOR BIDS THERE WAS SET FORTH A REQUIREMENT FOR ZINC PHOSPHIDE, 30 PERCENT, TO BE OF A PARTICLE SIZE SUITABLE FOR MIXING RAT BAIT. THE INVITATION OTHERWISE PROVIDES FOR BIDDERS TO WARRANT, WITH RESPECT TO ORIGIN AND SOURCE, THAT SUPPLIES DELIVERED UNDER ANY RESULTANT CONTRACT SHALL BE "AID GEOGRAPHIC CODE 901.' AS INDICATED ON PAGE 4 OF THE INVITATION, THIS INCLUDES THE UNITED STATES BUT EXCLUDES ITALY. ON PAGE 8 OF ITS BID, GALLARD SCHLESINGER CHEMICIDES, INC., STATED THAT THE SOURCE AND ORIGIN OF THE PRODUCT IT INTENDED TO SUPPLY WOULD BE "U.S.A. WITHIN THE DEFINITIONS STATED IN PARAGRAPH 1A ON PAGES 3 AND 4 OF THIS BID.' THE BID, THEREFORE, CLEARLY OFFERED STRICT COMPLIANCE WITH THE TERMS OF THE INVITATION AND THE BID COULD UNDER NO CIRCUMSTANCES BE CONSIDERED NONRESPONSIVE.

YOUR PROTEST IS BASED UPON AN ALLEGED PLAN OF THE SUCCESSFUL BIDDER TO USE ZINC PHOSPHIDE IMPORTED FROM ITALY AND IT IS ARGUED THAT THE SIMPLE DILUTION OF A HIGHER PERCENTAGE OF ZINC PHOSPHIDE TO 30-PERCENT ZINC PHOSPHIDE DOES NOT RESULT IN A COMMERCIALLY RECOGNIZED NEW COMMODITY THAT IS SUBSTANTIALLY DIFFERENT FROM ITS COMPONENT IN BASIC CHARACTERISTICS, OR IN PURPOSE OR IN UTILITY.

IT IS THE POSITION OF THE GENERAL SERVICES ADMINISTRATION THAT, EVEN IF THE RAW MATERIALS USED IN THE MANUFACTURE OF THE END PRODUCT HAD BEEN IMPORTED FROM ITALY, THE END PRODUCT NEVERTHELESS WOULD HAVE COMPLIED WITH THE SOURCE AND ORIGIN REQUIREMENTS OF THE INVITATION FOR BIDS. THE BIDDER PROPOSED TO SHIP THE MATERIALS FROM NEW YORK, WHICH QUALIFIES AS A SOURCE UNDER CODE 901, AND IT IS ADMINISTRATIVELY CONSIDERED THAT IMPORTATION FROM ITALY OF 100-PERCENT ZINC PHOSPHIDE, CONVERSION OF SAME BY THE ADDITION OF OTHER MATERIALS TO 30-PERCENT ZINC PHOSPHIDE AND PACKAGING FOR EXPORT TO THE PARTICIPATING COUNTRY IN THE PARTICULAR AGENCY FOR INTERNATIONAL DEVELOPMENT PROGRAM, CONSTITUTED PRODUCTION IN THE UNITED STATES WITHIN THE MEANING OF THE APPLICABLE SOURCE AND ORIGIN DEFINITIONS MADE A PART OF THE INVITATION.

WE BELIEVE THAT THE CONCLUSION OF THE GENERAL SERVICES ADMINISTRATION IS REASONABLE AND THAT WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE CONTRACT AWARD AS MADE TO GALLARD SCHLESINGER, INC. ACCORDINGLY, YOUR PROTEST IN THE MATTER MUST BE, AND IS, DENIED.