B-160196, DEC. 1, 1966

B-160196: Dec 1, 1966

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INC.: REFERENCE IS AGAIN MADE TO YOUR LETTER OF OCTOBER 3. THE SOLICITATION WAS ISSUED AUGUST 24. ADVISED THAT YOU WERE OFFERING TO FURNISH THE STEEL AS A DEALER. SINCE KOPPARBERG WAS KNOWN TO BE AN IMPORTER OF FOREIGN MATERIALS. THAT FOREIGN MATERIALS WERE NOT ACCEPTABLE. IT WAS ASSUMED AS OF OCTOBER 1. IT WAS DETERMINED. THAT YOU WERE NOT THE LOW BIDDER. YOU WERE ERRONEOUSLY ADVISED THAT AN AWARD HAD BEEN MADE TO JESSOP STEEL. BEFORE THE AWARD WAS MADE. THE ENTIRE SOLICITATION WAS REVIEWED AND IT WAS DISCOVERED THAT IT HAD BEEN PREPARED IMPROPERLY. SINCE THE ITEM WAS TO BE USED OUTSIDE THE UNITED STATES BY THE ARMED FORCES. THE BALANCE OF PAYMENTS CERTIFICATE AND APPLICABLE CLAUSES SHOULD HAVE BEEN USED RATHER THAN THE BUY AMERICAN PROVISIONS.

B-160196, DEC. 1, 1966

TO THE TRADERS DISTRIBUTING COMPANY, INC.:

REFERENCE IS AGAIN MADE TO YOUR LETTER OF OCTOBER 3, 1966, WITH ENCLOSURE, PROTESTING AGAINST AWARD OF A CONTRACT TO JESSOP STEEL COMPANY UNDER SOLICITATION DSA-500-67-R-0344.

THE SOLICITATION WAS ISSUED AUGUST 24, 1966, AND REQUESTED PROPOSALS ON AN F.O.B. ORIGIN BASIS FOR THE DELIVERY OF 7,573 POUNDS OF ALLOYED STEEL TO BE SHIPPED TO SOUTH VIETNAM. IT ALSO CONTAINED THE BUY AMERICAN CERTIFICATE AND BUY AMERICAN ACT CLAUSE AS PROVIDED IN ASPR 6-104.3 AND 6- 104.5, RESPECTIVELY.

YOUR PROPOSAL, DATED SEPTEMBER 2, 1966, ADVISED THAT YOU WERE OFFERING TO FURNISH THE STEEL AS A DEALER, THAT THE STEEL WOULD NOT BE OF DOMESTIC ORIGIN, AND THAT THE STORA KOPPARBERG COMPANY, NEW YORK, WOULD BE THE MANUFACTURING FACILITY. HOWEVER, SINCE KOPPARBERG WAS KNOWN TO BE AN IMPORTER OF FOREIGN MATERIALS, THE PROCUREMENT AGENCY ADVISED YOU ON SEPTEMBER 17, 1966, THAT FOREIGN MATERIALS WERE NOT ACCEPTABLE. AT THAT TIME, YOU STATED THAT THE LISTING OF KOPPARBERG HAD BEEN AN ERROR AND THAT THE ITEM WOULD BE FURNISHED BY A DOMESTIC CONCERN. SINCE YOU FAILED TO ADVISE THE PROCUREMENT AGENCY OF THE NAME OF THE DOMESTIC SOURCE, IT WAS ASSUMED AS OF OCTOBER 1, 1966, THAT YOU STILL INTENDED TO FURNISH A FOREIGN STEEL PRODUCT. UPON EVALUATION OF THAT BASIS, IT WAS DETERMINED, AFTER APPLYING THE APPLICABLE FOREIGN PRODUCTS PERCENTAGE FACTOR TO YOUR OFFER, THAT YOU WERE NOT THE LOW BIDDER.

YOU WERE ERRONEOUSLY ADVISED THAT AN AWARD HAD BEEN MADE TO JESSOP STEEL; HOWEVER, BEFORE THE AWARD WAS MADE, THE ENTIRE SOLICITATION WAS REVIEWED AND IT WAS DISCOVERED THAT IT HAD BEEN PREPARED IMPROPERLY. SINCE THE ITEM WAS TO BE USED OUTSIDE THE UNITED STATES BY THE ARMED FORCES, THE BALANCE OF PAYMENTS CERTIFICATE AND APPLICABLE CLAUSES SHOULD HAVE BEEN USED RATHER THAN THE BUY AMERICAN PROVISIONS. IT WAS ALSO ASCERTAINED THAT THE PROPER EVALUATION CLAUSES PERTAINING TO F.O.B. ORIGIN DELIVERY FOR SHIPMENT OVERSEAS HAD BEEN OMITTED. IN VIEW OF ALL THESE DEFICIENCIES, IT WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE SOLICITATION AND ISSUE A NEW REQUEST FOR PROPOSALS CONTAINING ALL THE REQUIRED AND NECESSARY PROVISIONS. ALL OFFERORS, INCLUDING YOUR FIRM, WERE ADVISED OF THIS DECISION ON OCTOBER 4.

THE NEW SOLICITATION WAS ISSUED OCTOBER 14, 1966, FOR THE SAME ITEM AND CONTAINED THE BALANCE OF PAYMENTS PROGRAM CERTIFICATION AND CLAUSE, AS WELL AS THE PROPER EVALUATION PROVISIONS APPLICABLE TO OVERSEAS DELIVERY. YOUR NEW PROPOSAL INDICATED THAT THE ITEM WOULD BE PRODUCED IN SODERFOS, SWEDEN, CONTRARY TO THE BALANCE OF PAYMENTS PROVISIONS OF THE NEW SOLICITATION. YOUR PROPOSAL WAS THEREFORE DISREGARDED AND AWARD WAS MADE TO THE BETHLEHEM STEEL EXPORT CORPORATION ON OCTOBER 26, 1966, AS THE LOWEST OFFEROR COMPLYING WITH THE TERMS OF THE SOLICITATION.

UPON REVIEW OF THE PROCUREMENT, WE FIND NO BASIS TO QUESTION THE ACTIONS TAKEN IN CANCELING THE FIRST SOLICITATION WHICH WAS PATENTLY DEFECTIVE OR IN MAKING AN AWARD TO THE LOWEST DOMESTIC OFFEROR UNDER THE SECOND SOLICITATION. SEE 43 COMP. GEN. 217, 221.