B-161124, APR. 13, 1967

B-161124, APR. 13, 1967

TO MR. VERBON D. WALKER, CERTIFYING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1967 (D 733B-2) AP 36 03- 948, IN WHICH YOU REQUEST THE DECISION OF THIS OFFICE AS TO WHETHER STANDARD FORM 1166 (VOUCHER AND SCHEDULE OF PAYMENTS) MAY BE CERTIFIED FOR PAYMENT IN FAVOR OF THE HYDROSWIFT CORPORATION AS VENDOR UNDER PURCHASE ORDER 53-655-437, COVERING 20 WILDLIFE WATERING DEVICES WHICH HAD BEEN ORDERED BY THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR.

THE PURCHASE ORDER, IN THE AMOUNT OF $7,431.11, WAS ADMINISTRATIVELY APPROVED AND ISSUED TO THE VENDOR WITHOUT COMPETITIVE BIDDING. APPARENTLY, THE PROCUREMENT CLERK BELIEVED THAT HYDROSWIFT WAS THE ONLY SOURCE OF SUPPLY OF THE WATERING DEVICES, AND THEREFORE PREPARED THE PURCHASE ORDER WITHOUT REGARD TO THE PROCEDURES GOVERNING SOLE SOURCE PROCUREMENTS (41 U.S.C. 252 (C) (10); FEDERAL PROCUREMENT REGULATIONS 1- 3.210). A LATER EXAMINATION OF SUPPLIERS OF THE END ITEM MADE BY YOUR AGENCY SHOWED THAT NONE OF THE FIRMS REQUESTED TO RESPOND TO A REQUEST FOR QUOTATIONS ADVISED THAT THEY WERE IN A POSITION TO SUPPLY THE NEEDS FOR WATERING DEVICES. FURTHERMORE, THE PROCUREMENT WAS DISCUSSED WITH THE "VALE DISTRICT," AND THEY ADVISED THAT "HYDROSWIFT CORPORATION HAD BEEN THE ONLY SOURCE OF SUPPLY THAT THEY HAD BEEN ABLE TO LOCATE.' THE DEVICES HAVE BEEN DELIVERED AND INSTALLED, OR ARE IN THE PROCESS OF INSTALLATION.

THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (10), REQUIRES THAT ALL PURCHASES BE MADE BY ADVERTISING AS PROVIDED IN 41 U.S.C. 253, EXCEPT THAT SUCH PURCHASES MAY BE NEGOTIATED WITHOUT ADVERTISING IF "FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION.'

ALTHOUGH THE PURCHASE ORDER WAS NOT SUPPORTED BY A DETERMINATION AND FINDINGS JUSTIFYING THE USE OF NEGOTIATION PROCEDURES, THE RECORD SHOWS THAT THERE WAS NO PREJUDICE TO OTHER SUPPLIERS, AND THE WORK WAS UNDERTAKEN AND MADE IN GOOD FAITH ON THE BELIEF THAT IT WAS PROPERLY ORDERED. IT APPEARS THAT YOUR AGENCY HAS FOUND THE CHARGES TO BE REASONABLE UNDER THE CIRCUMSTANCES INVOLVED, AND HAS RECOMMENDED PAYMENT OF THE FULL AMOUNT DUE UNDER THE PURCHASE ORDER, THE NEGOTIATION OF WHICH WOULD HAVE BEEN JUSTIFIED IN THE FIRST INSTANCE UNDER THE LAW AND REGULATIONS.

IN VIEW OF THE FOREGOING, AND SINCE THERE APPEARS TO BE BUT A PROCEDURAL DEFECT IN THE PROCUREMENT, THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT IF PROPER IN OTHER RESPECTS.