B-165923, APR. 14, 1969

B-165923: Apr 14, 1969

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TO BRUNSWICK CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO AMERICAN MACHINE AND FOUNDRY (AMF) BY BOLLING AIR FORCE BASE PURSUANT TO INVITATION FOR BIDS NO. IT IS REPORTED THAT THE BASE PROCUREMENT OFFICE ISSUED THE INVITATION FOR THE CENTRAL BASE FUND. WHICH IS A NONAPPROPRIATED FUND ACTIVITY. AT A PRE-BID CONFERENCE IT WAS EXPLAINED THAT THERE WAS A STRONG POSSIBILITY THERE WOULD BE NO TRADE-IN SINCE CONSIDERATION WAS BEING GIVEN TO RETAINING THE OLD BOWLING ALLEYS AND EQUIPMENT. THE DECISION WAS MADE TO RETAIN THE OLD BOWLING ALLEYS AND EQUIPMENT. AWARD WAS MADE TO AMF ON JANUARY 3. YOU CONTEND THAT YOUR BID WAS BASED SPECIFICALLY ON INCLUSION OF THE TRADE-IN REQUIREMENT AND THAT THIS MATERIALLY AFFECTED YOUR BID.

B-165923, APR. 14, 1969

TO BRUNSWICK CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO AMERICAN MACHINE AND FOUNDRY (AMF) BY BOLLING AIR FORCE BASE PURSUANT TO INVITATION FOR BIDS NO. F49604-69-B-0082.

IT IS REPORTED THAT THE BASE PROCUREMENT OFFICE ISSUED THE INVITATION FOR THE CENTRAL BASE FUND, WHICH IS A NONAPPROPRIATED FUND ACTIVITY. THE INVITATION CALLED FOR BIDS ON 16 BOWLING LANES, 16 PINSETTING MACHINES AND VARIOUS ITEMS OF ANCILLARY BOWLING EQUIPMENT. IN ADDITION, THE INVITATION REQUIRED BIDDERS TO QUOTE AN AMOUNT TO BE ALLOWED FOR TRADE-IN OF CERTAIN USED BOWLING EQUIPMENT. AT A PRE-BID CONFERENCE IT WAS EXPLAINED THAT THERE WAS A STRONG POSSIBILITY THERE WOULD BE NO TRADE-IN SINCE CONSIDERATION WAS BEING GIVEN TO RETAINING THE OLD BOWLING ALLEYS AND EQUIPMENT. YOU AND AMF SUBMITTED BIDS AS FOLLOWS:

BRUNSWICK AMF

NEW EQUIPMENT $137,742 $134,642

TRADE-IN ALLOWANCE $ 8,000 $ 4,000

NET $129,742 $130,642 SUBSEQUENT TO SUBMISSION OF BIDS, THE DECISION WAS MADE TO RETAIN THE OLD BOWLING ALLEYS AND EQUIPMENT. THEREFORE, AWARD WAS MADE TO AMF ON JANUARY 3, 1969, AS THE LOW BIDDER ON THE NEW EQUIPMENT.

YOU CONTEND THAT YOUR BID WAS BASED SPECIFICALLY ON INCLUSION OF THE TRADE-IN REQUIREMENT AND THAT THIS MATERIALLY AFFECTED YOUR BID. YOU SAY THERE ARE MANY REASONS FOR THIS, OF WHICH YOU MENTION ONLY HAVING TO ACCEPT COMPETITIVE EQUIPMENT (THE EQUIPMENT TO BE TRADED-IN WAS AMF EQUIPMENT), AND THE REMOVAL AND TRANSPORTATION OF THE TRADED-IN EQUIPMENT. ASIDE FROM THE FACT IT WAS EXPLAINED TO YOUR MR. BALDWIN AT THE PRE-BID CONFERENCE THAT THE PROBABILITY WAS STRONG THERE WOULD BE NO TRADE-IN, WE DO NOT UNDERSTAND HOW YOUR BID COULD HAVE BEEN AFFECTED TO YOUR PREJUDICE BY THE REQUIREMENT FOR A QUOTATION ON THE EQUIPMENT WHICH MIGHT BE TRADED IN. THE REQUIREMENT FOR REMOVAL AND TRANSPORTATION OF THE TRADED-IN EQUIPMENT WAS AN EQUAL BURDEN ON ALL BIDDERS. WE CAN UNDERSTAND A RELUCTANCE ON YOUR PART TO PURCHASE USED EQUIPMENT OF A COMPETITOR, AND IT WOULD SEEM LOGICAL THAT SUCH EQUIPMENT MIGHT BE WORTH LESS TO YOU THAN TO THE COMPANY BY WHOM IT WAS MADE.

WE CAN UNDERSTAND THIS ARGUMENT SO FAR AS THE EVALUATION OF THE TRADE-IN ALLOWANCE IS ONCERNED; YOUR TRADE-IN ALLOWANCE LOGICALLY WELL MIGHT HAVE TO BE LESS. THE FACT OF THE MATTER IS THAT YOUR TRADE-IN ALLOWANCE WAS TWICE THAT OF YOUR COMPETITOR, AND YOUR PRICE ON THE NEW EQUIPMENT WAS HIGHER. IN OTHER WORDS, THE REQUIREMENT FOR A TRADE-IN ALLOWANCE OPERATED TO YOUR ADVANTAGE, RATHER THAN TO YOUR DISADVANTAGE. WE KNOW OF NO LEGITIMATE REASON WHY YOUR PRICE ON THE NEW EQUIPMENT COULD POSSIBLY HAVE BEEN INCREASED BECAUSE OF THE TRADE IN ALLOWANCE REQUIREMENT, AND WE MUST THEREFORE CONCLUDE THAT YOU WOULD NOT HAVE BEEN THE LOW BIDDER EVEN IF THERE HAD BEEN NO REQUIREMENT FOR A TRADE-IN ALLOWANCE.

AT ANY RATE, ALTHOUGH THE CENTRAL BASE FUND IS AN INSTRUMENTALITY OF THE GOVERNMENT, IT IS OPERATED WITH NONAPPROPRIATED FUNDS AND IS, THEREFORE, NOT SUBJECT TO THE REQUIREMENTS IMPOSED BY THE PROCUREMENT STATUTES AND REGULATIONS APPLICABLE TO GOVERNMENT PROCUREMENT FROM APPROPRIATED FUNDS. SEE 10 U.S.C. 2303 (A). NOR ARE ITS ACTIVITIES SUBJECT TO AUDIT BY THE GENERAL ACCOUNTING OFFICE.

THEREFORE, WE HAVE NO JURISDICTION TO RENDER AN AUTHORITATIVE DECISION AS TO THE PROPRIETY OF THE AWARD AND ARE NOT IN A POSITION TO BE OF ANY FURTHER ASSISTANCE TO YOU.