B-160172, OCT. 24, 1966

B-160172: Oct 24, 1966

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YOUR REQUEST IS PROMPTED BY THE FOLLOWING PROCUREMENT SITUATION WHICH HAS DEVELOPED IN THE PAST 2 YEARS. YOU WERE ADVISED THAT THE EQUIPMENT WAS STILL URGENTLY NEEDED BUT THAT THE BUY -AMERICAN WAIVER HAD NOT BEEN CLEARED. ON THE BASIS OF THIS ADVICE YOU PLACED A FIRM ORDER WITH YOUR FACTORY FOR ALL ITEMS OF THE CAMERA SET WHICH MIGHT BE IN SHORT SUPPLY SO THAT YOU COULD DELIVER PROMPTLY AS SOON AS AN OFFICIAL ORDER WAS RECEIVED. YOU LEARNED FROM SOURCES IN THE PENTAGON THAT THE BUY-AMERICAN WAIVER WAS "SIGNED OFF. THAT SEVERAL WEEKS LATER YOU WERE ADVISED THAT A "STOP ORDER" WAS PLACED ON THE PROCUREMENT. A NEW REQUEST WAS MADE FOR THE 440 CAMERA SETS THROUGH A GENERAL SERVICES ADMINISTRATION NEGOTIATED PURCHASE.

B-160172, OCT. 24, 1966

TO E. LEITZ, INC.:

YOUR LETTER OF SEPTEMBER 27, 1966, REQUESTS OUR ASSISTANCE IN CLARIFYING THE PROCUREMENT PROCEDURES OF, AND THE ESTABLISHMENT OF REQUIREMENTS FOR, PHOTOGRAPHIC EQUIPMENT IN THE DEPARTMENT OF THE ARMY. YOUR REQUEST IS PROMPTED BY THE FOLLOWING PROCUREMENT SITUATION WHICH HAS DEVELOPED IN THE PAST 2 YEARS.

IN YOUR LETTER YOU STATE THAT DURING THE PAST 10 YEARS THE GOVERNMENT HAS BEEN PROCURING THE LEICA M3 CAMERA, DESIGNATED BY THE ARMY AS A KS-15 CAMERA SET, FROM YOUR FIRM ON A SOLE-SOURCE BASIS. IT APPEARS THAT IN SEPTEMBER 1964, PURSUANT TO A REQUEST BY A REPRESENTATIVE OF THE WRIGHT- PATTERSON AIR FORCE BASE, YOU SUBMITTED AN UNOFFICIAL QUOTATION FOR DELIVERING 440 KS-15 CAMERA SETS IN THE UNITED STATES. IN MARCH 1965, YOU WERE ADVISED THAT THE EQUIPMENT WAS STILL URGENTLY NEEDED BUT THAT THE BUY -AMERICAN WAIVER HAD NOT BEEN CLEARED. ON THE BASIS OF THIS ADVICE YOU PLACED A FIRM ORDER WITH YOUR FACTORY FOR ALL ITEMS OF THE CAMERA SET WHICH MIGHT BE IN SHORT SUPPLY SO THAT YOU COULD DELIVER PROMPTLY AS SOON AS AN OFFICIAL ORDER WAS RECEIVED. YOU STATE THAT IN DECEMBER 1965, YOU LEARNED FROM SOURCES IN THE PENTAGON THAT THE BUY-AMERICAN WAIVER WAS "SIGNED OFF; " THAT IN FEBRUARY 1966, YOU RECEIVED FROM WRIGHT-PATTERSON AIR FORCE BASE A REQUEST FOR QUOTATION FOR THE 440 CAMERA SETS AND YOU PROMPTLY SUBMITTED A NEW QUOTATION; AND THAT SEVERAL WEEKS LATER YOU WERE ADVISED THAT A "STOP ORDER" WAS PLACED ON THE PROCUREMENT. YOU SAY THAT IN JUNE 1966, A NEW REQUEST WAS MADE FOR THE 440 CAMERA SETS THROUGH A GENERAL SERVICES ADMINISTRATION NEGOTIATED PURCHASE. SEVERAL WEEKS AFTER YOU RESPONDED TO THIS REQUEST YOU WERE INFORMED THAT A SOLE-SOURCE NEGOTIATION OF THE EQUIPMENT COULD NOT BE MADE SINCE FOUR OTHER CAMERA MODELS WERE DEEMED ACCEPTABLE.

THE MATTER WHICH YOU PRESENT APPARENTLY INVOLVES THE PROCUREMENT PROCEDURES OF THE DEPARTMENT OF THE AIR FORCE AND THE GENERAL SERVICES ADMINISTRATION AS WELL AS THE DEPARTMENT OF THE ARMY.

IN THE PROCUREMENT OF SUPPLIES AND SERVICES IT IS WITHIN THE PROVINCE OF THOSE AGENCIES TO DETERMINE WHEN AND WHAT SUPPLIES SHOULD BE PROCURED TO MEET THEIR NEEDS. ALSO, THE DETERMINATION AS TO WHETHER AN ITEM SHOULD BE PROCURED BY NEGOTIATION OR FORMAL ADVERTISING AND WHETHER THE PURCHASE OF THE ITEM MIGHT VIOLATE THE PROVISIONS OF THE BUY-AMERICAN ACT ARE MATTERS PRIMARILY FOR CONSIDERATION BY THOSE AGENCIES.

OUR JURISDICTION WITH RESPECT TO GOVERNMENT CONTRACTS, EXCEPT FOR OUR OWN COMPARATIVELY MINOR PROCUREMENTS, IS SOLELY TO INSURE THAT NO CONTRACT IS AWARDED EXCEPT IN CONFORMITY WITH APPLICABLE STATUTES AND REGULATIONS. HAVE NO AUTHORITY TO ESTABLISH THE REQUIREMENTS FOR PHOTOGRAPHIC EQUIPMENT FOR AN ADMINISTRATIVE AGENCY. NOR DO WE HAVE ANY AUTHORITY TO DIRECT THAT AN AWARD OF A CONTRACT BE MADE WHEN IN THE VIEW OF THE CONTRACTING AGENCIES THE AWARD SHOULD BE DELAYED, OR NO AWARD SHOULD BE MADE AT ALL.

ACCORDINGLY, WE REGRET THAT WE MUST ADVISE YOU THAT THERE IS NO ACTION WHICH OUR OFFICE CAN TAKE AT THIS TIME WITH RESPECT TO THE MATTER.