B-158971, JUN. 9, 1966

B-158971, JUN. 9, 1966

TO ALL PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 15, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER BY THE DEPARTMENT OF AGRICULTURE, ARS, SOUTHERN ADMINISTRATIVE DIVISION, NEW ORLEANS, LOUISIANA, FOR STEEL PANEL SECTIONS AND GATES FOR ANIMAL PENS TO BE USED IN KERRVILLE, TEXAS.

THE SOUTHERN ADMINISTRATIVE DIVISION, ARS, IN NEW ORLEANS, LOUISIANA, ISSUED A REQUEST FOR OPEN-MARKET QUOTATIONS NO. AS-5823 (AS 33-66) 45/TEXAS, FOR THE ABOVE-MENTIONED MATERIALS TO THREE CONCERNS ON NOVEMBER 12, 1965. QUOTATIONS WERE RECEIVED FROM TWO CONCERNS ONLY; LIFETIME GATE COMPANY AND ALL PRODUCTS COMPANY IN THE AMOUNTS OF $1,990.60 (LESS 2 PERCENT DISCOUNT) AND $1,841.16, RESPECTIVELY, OR A DIFFERENCE OF $109.63 (INCLUDING THE DISCOUNT). HOWEVER, NOTWITHSTANDING THE LOWER PRICE SUBMITTED BY ALL PRODUCTS COMPANY, THE ACTING VETERINARIAN IN CHARGE AT THE ANIMAL DISEASE AND PARASITE RESEARCH DIVISION IN KERRVILLE, TEXAS, THE USING ACTIVITY, WROTE TO THE PROCUREMENT OFFICER IN NEW ORLEANS ON JANUARY 4, 1966, RECOMMENDING THE AWARD BE MADE TO LIFETIME GATE COMPANY FOR THE FOLLOWING REASONS:

"1. NATIONAL REPUTATION OF QUALITY PRODUCTS.

"2. REPAIR OR REPLACEMENT OF DAMAGED PRODUCTS (AT COST OF ONE-WAY TRANSPORTATION ONLY) WITH NO TIME LIMITATION.

"3. THE 2 PERCENT DISCOUNT RESULTING FROM PROMPT PAYMENT.

"4. PROMPT DELIVERY DATE OF PRODUCTS WITHIN 2-3 WEEKS.'

ACTING ON THIS RECOMMENDATION, THE PROCUREMENT OFFICER ISSUED PURCHASE ORDER NO. S-9557-ARS-66 TO LIFETIME GATE COMPANY ON JANUARY 7, 1966, IN THE AMOUNT OF $1,990.60 LESS TWO PERCENT DISCOUNT FOR PAYMENT WITHIN TEN DAYS. ALL PRODUCTS COMPANY SPECIFICALLY REQUESTS THE AWARD TO LIFETIME BE CANCELLED AND AN AWARD MADE TO ALL PRODUCTS IN ITS STEAD. AFTER RECEIPT OF THE PROTEST, THE PROCUREMENT OFFICER ASKED LIFETIME IF IT WOULD ACCEPT RETURN OF ITS MATERIALS; THIS THEY REFUSED TO DO, BUT OFFERED TO FURNISH THE MATERIAL AT THE SAME PRICE AS THE LOW BID, I.E., $1,841.16. AS OF THIS DATE, ALL MATERIALS HAVE BEEN DELIVERED AND THE WORK HAS BEEN COMPLETED.

THE PROCUREMENT IN THIS INSTANCE WAS MADE PURSUANT TO THE AUTHORITY OF SECTION 302 (C) (3) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT (41 U.S.C. 252 (C) (3) ( AND SECTION 1-3.203 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), AUTHORIZING PURCHASES AND CONTRACTS WITHOUT FORMAL ADVERTISING IF THE AGGREGATE AMOUNT INVOLVED DOES NOT EXCEED $2,500. WHEN THIS IS THE CASE, THE RIGID RULES OF FORMAL ADVERTISING ARE NOT APPLIED, BUT RATHER OTHER GUIDELINES AS SET FORTH IN FPR SUBPART 1- 3./101-903) ARE USED BY THE CONTRACTING OFFICER IN MAKING HIS DETERMINATION AS TO WHOM THE AWARD SHOULD BE MADE. THUS, IN NEGOTIATED PROCUREMENTS IT IS NOT A REQUIREMENT THAT THE AWARD MUST BE MADE TO THE LOWEST BIDDER, I.E., THE CONTRACTING OFFICER HAS GREATER DISCRETION THAN IN FORMALLY ADVERTISED PROCUREMENTS.

HOWEVER THIS MAY BE, THE CONTRACTING OFFICER STILL MUST AWARD THE CONTRACT IN THE MANNER THAT IS MOST ADVANTAGEOUS TO THE GOVERNMENT. WE DO NOT FEEL THE AWARD IN THIS CASE WAS THE MOST ADVANTAGEOUS BARGAIN THE CONTRACTING OFFICER COULD HAVE MADE NOR DO WE FEEL THE REASONS STATED BY THE VETERINARIAN IN CHARGE AT KERRVILLE, TEXAS, WERE SUFFICIENT TO MAKE THE AWARD TO OTHER THAN THE LOW BIDDER. INDEED, THE ACTING ADMINISTRATOR, ARS, STATED IN HIS LETTER TO THIS OFFICE DATED MAY 6, 1966, THAT:

"A REVIEW OF THE ENTIRE MATTER CLEARLY ESTABLISHES THAT THE AWARD WAS ERRONEOUSLY MADE. THE REASONS STATED BY THE CONSIGNEE (THE ACTING VETERINARIAN IN CHARGE) ARE NOT VALID. THE CONSIGNEE'S MEMO OF JANUARY 4, 1966, * * * WAS ROUTINELY FORWARDED TO A NEW PROCUREMENT CLERK FOR HANDLING WHICH RESULTED IN THE ISSUANCE OF A PURCHASE ORDER TO LIFETIME GATE COMPANY.'

NEVERTHELESS, SINCE THE WORK HAS NOW BEEN COMPLETED, WE DO NOT BELIEVE IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE CONTRACT, DISMANTLE AND RETURN THE MATERIALS TO LIFETIME AND WAIT UNTIL THE WORK IS PERFORMED AGAIN BY ALL PRODUCTS COMPANY.

ACCORDINGLY, THOUGH THE CONTRACTING OFFICER DID NOT EXERCISE GOOD JUDGMENT IN THIS MATTER, THE PRACTICALITIES OF THE SITUATION DICTATE AGAINST CANCELLATION OF THE AWARD.