B-167696(2), JAN. 20, 1970

B-167696(2): Jan 20, 1970

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KUNZIG: REFERENCE IS MADE TO A REPORT DATED SEPTEMBER 26. ENCLOSED IS A COPY OF A LETTER OF TODAY TO THE PROTESTANT. THAT THE IFB THE PROTESTANT BID UPON SHOULD HAVE CONTAINED A CLEARER INDICATION OF JUST WHAT WILL BE CONSIDERED TO BE AN "ORDER" WITHIN THE MAXIMUM ORDER LIMITATION CLAUSE OF THE CONTRACT. 41 CODE OF FEDERAL REGULATIONS SEC. 5A-73.112 (E) STATES: "(E) WHENEVER A MAXIMUM ORDER LIMITATION IS USED. THE FOLLOWING PROVISION WILL BE INCLUDED IN RESULTING SCHEDULES: "IN ACCORDANCE WITH GSA BULLETIN FPMR E-50. ALTHOUGH THIS IS NOT A FEDERAL SUPPLY SCHEDULE CONTRACT SO THAT THERE IS NO RESULTING SCHEDULE. WILL BE CONSOLIDATED AND PLACED AS ONE ORDER. IS RETURNED.

B-167696(2), JAN. 20, 1970

TO MR. KUNZIG:

REFERENCE IS MADE TO A REPORT DATED SEPTEMBER 26, 1969, BY YOUR GENERAL COUNSEL RELATIVE TO THE PROTEST BY BARTON, DUER & KOCH PAPER COMPANY, AGAINST THE ISSUANCE OF INVITATION FOR BIDS (IFB) NO. SFAIS-1 70, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, SAN FRANCISCO, CALIFORNIA. THE REFERENCED IFB SOLICITED BIDS FOR A DEFINITE QUANTITY CONTRACT FOR THE FURNISHING OF FSC CLASS 7530 CARBONLESS TRANSFER PAPER. BARTON, DUER & KOCH PRESENTLY HOLDS REQUIREMENTS CONTRACT NO. GS-00S- 66381, WITH YOUR AGENCY, AND FEELS THAT THE ISSUANCE OF THE REFERENCED IFB CIRCUMVENTS THE AGENCY'S OBLIGATION TO COMPLY WITH THE TERMS OF THE REQUIREMENTS CONTRACT.

ENCLOSED IS A COPY OF A LETTER OF TODAY TO THE PROTESTANT. WHILE FOR THE REASONS STATED WE FIND NO BASIS FOR INTERFERING WITH THE PROCUREMENT IN THIS INSTANCE, WE BELIEVE, AS INDICATED THEREIN, THAT THE IFB THE PROTESTANT BID UPON SHOULD HAVE CONTAINED A CLEARER INDICATION OF JUST WHAT WILL BE CONSIDERED TO BE AN "ORDER" WITHIN THE MAXIMUM ORDER LIMITATION CLAUSE OF THE CONTRACT.

41 CODE OF FEDERAL REGULATIONS SEC. 5A-73.112 (E) STATES:

"(E) WHENEVER A MAXIMUM ORDER LIMITATION IS USED, THE APPLICABLE CLAUSE PRESCRIBED IN PARAGRAPH (F), (G), OR (H), BELOW, WITH THE APPROPRIATE MONETARY LIMITATIONS INSERTED, SHALL BE INCLUDED IN THE SOLICITATION AND RESULTING SCHEDULES. IN ADDITION, THE PROVISION BELOW SHALL BE INCLUDED IN THE SOLICITATION (BUT NOT THE RESULTING SCHEDULE) IMMEDIATELY FOLLOWING THE MAXIMUM ORDER LIMITATION CLAUSE:

"CONSOLIDATION OF REQUIREMENTS

"FOR THE INFORMATION OF THE OFFERORS, THE FOLLOWING PROVISION WILL BE INCLUDED IN RESULTING SCHEDULES:

"IN ACCORDANCE WITH GSA BULLETIN FPMR E-50, WHENEVER FEASIBLE, AGENCIES SHOULD CONSOLIDATE THEIR REQUIREMENTS SO AS TO TAKE ADVANTAGE OF PRICE SAVINGS AVAILABLE THROUGH SEPARATE PROCUREMENT OF QUANTITIES WHICH EXCEED THE MAXIMUM ORDER LIMITATION."

ALTHOUGH THIS IS NOT A FEDERAL SUPPLY SCHEDULE CONTRACT SO THAT THERE IS NO RESULTING SCHEDULE, WE BELIEVE THE SOLICITATION FOR REQUIREMENTS CONTRACTS OF THIS TYPE MIGHT WELL INCLUDE A CONSOLIDATION OF REQUIREMENTS PROVISION ALONG THE LINES OF THAT CITED ABOVE, WHICH WOULD CLEARLY INDICATE THAT ANY PURCHASE REQUESTS RECEIVED FROM DIFFERENT SUPPLY FACILITIES WITHIN A ZONE COVERED UNDER THE CONTRACT, PRIOR TO THE PLACING OF ANY ORDER FOR ANY SUCH REQUEST INDIVIDUALLY, WILL BE CONSOLIDATED AND PLACED AS ONE ORDER, SUBJECT TO THE MAXIMUM ORDER LIMITATION.

THE FILE FORWARDED WITH THE REPORT OF SEPTEMBER 26, 1969, IS RETURNED.