B-163890, MAY 20, 1968

B-163890: May 20, 1968

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SECRETARY: REFERENCE IS MADE TO THE LETTER OF APRIL 8. ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO ALLIS-CHALMERS DENYING THE PROTEST. WITHOUT DOUBT THIS LANGUAGE WAS SUBJECT TO DIFFERENT INTERPRETATIONS. HAD THE PROTESTANT BEEN AN INEXPERIENCED BIDDER UNDER THIS PARTICULAR TYPE OF PROCUREMENT AND SHOWN THAT IT WERE NOT ERRONEOUS. IT SHOULD BE NOTED THAT THE PROTEST WAS GENUINELY WAS MISLED BY THE LANGUAGE USED. WE MIGHT HAVE FOUND IT NECESSARY TO DIRECT CANCELLATION OF THE INVITATION AND REQUIRE RE -ADVERTISEMENT OF THE PROCUREMENT. WE HAVE BEEN ADVISED BY THE DEPUTY DIRECTOR OF YOUR OFFICE OF PLANT AND OPERATIONS THAT AD 376 WAS DESIGNED AND PRESCRIBED FOR SERVICE TYPE CONTRACTS (FOR WHICH NO STANDARD FORM HAS BEEN MANDATORILY PRESCRIBED BY THE FPR) AND AUTHORIZED FOR OPTIONAL USE FOR CERTAIN SUPPLY CONTRACTS.

B-163890, MAY 20, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF APRIL 8, 1968, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, UNITED STATES DEPARTMENT OF AGRICULTURE, FORWARDING FOR OUR CONSIDERATION A PROTEST BY ALLIS CHALMERS MANUFACTURING COMPANY AGAINST AN AWARD TO ANY OTHER BIDDER ON ITEMS 17 THROUGH 31 AND 41, UNDER INVITATION FOR BIDS NO. FS-5-68, ISSUED BY THE FOREST SERVICE ON JANUARY 15, 1968.

ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO ALLIS-CHALMERS DENYING THE PROTEST. THEREFORE, THE CONTRACTS MAY BE AWARDED ON THE BASIS EARLIER PROPOSED BY THE CONTRACTING OFFICER.

WHILE WE CONCLUDED THAT THE AWARDS PROPOSED BY YOUR DEPARTMENT ENGENDERED PRIMARILY BY THE USE IN THE INVITATION OF YOUR FORM AD 376, WHICH INCLUDED IN ARTICLE 2 OF THE GENERAL TERMS AND CONDITIONS LANGUAGE DIFFERING FROM THAT OF THE CORRESPONDING PROVISION OF STANDARD FORM 33A. WITHOUT DOUBT THIS LANGUAGE WAS SUBJECT TO DIFFERENT INTERPRETATIONS, AND HAD THE PROTESTANT BEEN AN INEXPERIENCED BIDDER UNDER THIS PARTICULAR TYPE OF PROCUREMENT AND SHOWN THAT IT WERE NOT ERRONEOUS, IT SHOULD BE NOTED THAT THE PROTEST WAS GENUINELY WAS MISLED BY THE LANGUAGE USED, WE MIGHT HAVE FOUND IT NECESSARY TO DIRECT CANCELLATION OF THE INVITATION AND REQUIRE RE -ADVERTISEMENT OF THE PROCUREMENT.

WE HAVE BEEN ADVISED BY THE DEPUTY DIRECTOR OF YOUR OFFICE OF PLANT AND OPERATIONS THAT AD 376 WAS DESIGNED AND PRESCRIBED FOR SERVICE TYPE CONTRACTS (FOR WHICH NO STANDARD FORM HAS BEEN MANDATORILY PRESCRIBED BY THE FPR) AND AUTHORIZED FOR OPTIONAL USE FOR CERTAIN SUPPLY CONTRACTS. HAVE NOT BEEN ADVISED OF ANY AUTHORIZATION BY GSA FOR THE OBVIOUS DEVIATION FROM THE FORM PRESCRIBED FOR SUPPLY CONTRACTS, AND BELIEVE THAT ITS CONTINUED USE FOR THAT PURPOSE IS NOT IN ACCORDANCE WITH THE FPR.

WE SUGGEST THEREFORE, THAT USE OF YOUR FORM AD 376 FOR SUPPLY CONTRACTS BE DISCONTINUED. AS REQUESTED, THE FILE ENCLOSED WITH THE REPORT IS RETURNED.