B-154976, SEP. 15, 1964

B-154976: Sep 15, 1964

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TO THE HONORABLE SECRETARY OF THE ARMY: WE ARE IN RECEIPT OF A LETTER DATED AUGUST 14. WHILE IT IS CONCEDED THAT THE PROTESTANT'S BID WAS ERRONEOUSLY REJECTED. WE ARE ASKED TO DECIDE WHETHER IT WOULD BE IMPROPER TO ALLOW THE PRESENT CONTRACTOR TO COMPLETE DELIVERY IN VIEW OF THE CIRCUMSTANCES. WAS SUBMITTED BY DONALLCO. THE DIRECTORATE OF ENGINEERING WAS ASKED WHETHER THE OFFERED PRODUCT MET THE TECHNICAL REQUIREMENTS REFERRED TO IN THE INVITATION. AWARD WAS MADE TO THE SECOND LOW BIDDER (DONALLCO. LATEST ACCEPTABLE DELIVERY UNDER THE CONTRACT WAS SCHEDULED FOR LATE SEPTEMBER 1964. THE MATTER WAS AGAIN REFERRED TO THE DIRECTORATE OF ENGINEERING. THE CONTRACTING OFFICER WAS ADVISED THAT AFTER FURTHER RESEARCH.

B-154976, SEP. 15, 1964

TO THE HONORABLE SECRETARY OF THE ARMY:

WE ARE IN RECEIPT OF A LETTER DATED AUGUST 14, 1964, FROM THE DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, ENCLOSING A FULL REPORT AND PERTINENT DATA RELATIVE TO A PROTEST FILED WITH YOUR OFFICE BY PACIFIC PROPELLER, INCORPORATED, UNDER INVITATION FOR BIDS NO. AMC (T/-23-204-64-273. WHILE IT IS CONCEDED THAT THE PROTESTANT'S BID WAS ERRONEOUSLY REJECTED, WE ARE ASKED TO DECIDE WHETHER IT WOULD BE IMPROPER TO ALLOW THE PRESENT CONTRACTOR TO COMPLETE DELIVERY IN VIEW OF THE CIRCUMSTANCES.

THE RECORD DISCLOSES THAT ON DECEMBER 6, 1963, THE UNITED STATES ARMY AVIATION AND SURFACE MATERIEL COMMAND ISSUED THE ABOVE INVITATION REQUESTING BIDS ON A SPECIFIED QUANTITY OF "CONE PROPELLERS, HUB FRONT" IN ACCORDANCE WITH MILITARY STANDARD MS 5007-50, DATED SEPTEMBER 5, 1961. PACIFIC PROPELLER, INCORPORATED, SUBMITTED THE LOW BID AT $17.00 PER UNIT; THE NEXT LOW BID, AT $17.50 PER UNIT, WAS SUBMITTED BY DONALLCO, INCORPORATED. SINCE PACIFIC INDICATED THAT IT INTENDED TO FURNISH GOVERNMENT SURPLUS PROPERTY PROCURED IN 1946, THE DIRECTORATE OF ENGINEERING WAS ASKED WHETHER THE OFFERED PRODUCT MET THE TECHNICAL REQUIREMENTS REFERRED TO IN THE INVITATION. UPON RECEIPT OF A NEGATIVE RESPONSE, AWARD WAS MADE TO THE SECOND LOW BIDDER (DONALLCO, INC.) ON MAY 13, 1964. LATEST ACCEPTABLE DELIVERY UNDER THE CONTRACT WAS SCHEDULED FOR LATE SEPTEMBER 1964.

AFTER RECEIPT OF A FORMAL PROTEST DATED MAY 22, 1964, THE MATTER WAS AGAIN REFERRED TO THE DIRECTORATE OF ENGINEERING. ON JUNE 22, 1964, THE CONTRACTING OFFICER WAS ADVISED THAT AFTER FURTHER RESEARCH, IT WAS THE OPINION OF THE DIRECTORATE THAT THE PARTS OFFERED BY PACIFIC DID IN FACT MEET THE TECHNICAL REQUIREMENTS REFERRED TO IN THE INVITATION.

BY TWX DATED JULY 14, 1964, DONALLCO ADVISED THAT THE DESIRED ITEMS WERE READY FOR IMMEDIATE DELIVERY AND THAT THE FIRM WOULD REDUCE ITS UNIT PRICE TO $16.50. IN VIEW THEREOF, BOTH THE CONTRACTING OFFICER AND THE DEPUTY DIRECTOR RECOMMEND ACCEPTANCE.

GENERALLY, AWARD UNDER FORMAL ADVERTISING MAY BE MADE ONLY TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. B-154356, JULY 22, 1964. HOWEVER, IN THIS CASE WE CANNOT CONCLUDE THAT CANCELLATION AND READVERTISEMENT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT SINCE THE EVIDENCE SHOWS THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH UPON COMPETENT TECHNICAL ADVICE AND THE PARTY PERFORMING, ALSO ACTING IN GOOD FAITH, HAS COMPLETED THE REQUESTED ITEMS. 40 COMP. GEN. 339; 41 ID. 242.

IN VIEW OF THE FACTS OF THIS CASE, WE HAVE NO OBJECTION TO PERMITTING THE PRESENT CONTRACTOR TO SUPPLY THE REQUIRED ITEMS AT THE REDUCED PRICE OF $16.50 PER UNIT HE HAS OFFERED.