B-170321, OCT. 15, 1970

B-170321: Oct 15, 1970

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WHO IS PROTESTING THAT ONLY ONE SOURCE CAN BID ON THE PROCUREMENT UNDER THE LISTED SPECIFICATION. THE SOLICITATION NEEDS CLARITY AS TO WHETHER IT IS A RFP OR IFB. IS DENIED PROTEST. THE UNIVERSITY IS NOT REQUIRED TO COMPLY WITH THE REGULATION IN CONDUCTING THE PROCUREMENT IN QUESTION. THE ISSUE OF WHETHER THE SPECIFICATIONS SHOULD BE REWRITTEN AND THE PROCUREMENT RESOLICITED IS A MATTER WITHIN THE DESCRITION OF THE UNIVERSITY. THE SUBSTANCE OF YOUR PROTEST IS THAT ONLY ONE SOURCE CAN BID ON THE PROCUREMENT UNDER THE SPECIFICATIONS AS ISSUED AND THAT AT LEAST FOUR OF THE ITEMS OF EQUIPMENT LISTED IN THE SOLICITATION CANNOT MEET A STATED REQUIREMENT FOR COMPLIANCE WITH EIA AND NTSC ENCODED STANDARDS OF THE NATIONAL TELEVISION SYSTEM COMMITTEE.

B-170321, OCT. 15, 1970

BID PROTEST - FEDERAL GRANT FUNDS - HOWARD UNIVERSITY DENIAL OF PROTEST OF VIDEO ENGINEERING CO., INC., AGAINST THE AWARD OF A CONTRACT FOR A CLOSED CIRCUIT TELEVISION SYSTEM ISSUED UNDER A SPECIAL PROJECT GRANT TO HOWARD UNIVERSITY BY THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. OFFEROR, WHO IS PROTESTING THAT ONLY ONE SOURCE CAN BID ON THE PROCUREMENT UNDER THE LISTED SPECIFICATION, AND THE SOLICITATION NEEDS CLARITY AS TO WHETHER IT IS A RFP OR IFB, AND SHOULD BE REWRITTEN, IS DENIED PROTEST, SINCE IN THE ABSENCE OF A PROVISION IN THE AUTHORIZING STATUTE OR IN THE TERMS OF A GRANT AGREEMENT WITH HOWARD UNIVERSITY MAKING THE FPR APPLICABLE TO THE EXPENDITURE OF THE GRANT FUNDS, THE UNIVERSITY IS NOT REQUIRED TO COMPLY WITH THE REGULATION IN CONDUCTING THE PROCUREMENT IN QUESTION. UNDER THE CIRCUMSTANCE, THE ISSUE OF WHETHER THE SPECIFICATIONS SHOULD BE REWRITTEN AND THE PROCUREMENT RESOLICITED IS A MATTER WITHIN THE DESCRITION OF THE UNIVERSITY.

TO VIDEO ENGINEERING CO., INC.:

WE REFER TO YOUR PROTEST BY LETTER OF JULY 9, 1970, AS SUPPLEMENTED BY YOUR LETTER OF AUGUST 11, AGAINST ANY AWARD OF A CONTRACT BY HOWARD UNIVERSITY FOR A CLOSED-CIRCUIT TELEVISION SYSTEM FOR ITS COLLEGE OF DENTISTRY UNDER A SOLICITATION FOR OFFERS ISSUED JUNE 18, 1970, AND IDENTIFIED AS BID NO. 51.

THE SUBSTANCE OF YOUR PROTEST IS THAT ONLY ONE SOURCE CAN BID ON THE PROCUREMENT UNDER THE SPECIFICATIONS AS ISSUED AND THAT AT LEAST FOUR OF THE ITEMS OF EQUIPMENT LISTED IN THE SOLICITATION CANNOT MEET A STATED REQUIREMENT FOR COMPLIANCE WITH EIA AND NTSC ENCODED STANDARDS OF THE NATIONAL TELEVISION SYSTEM COMMITTEE. ACCORDINGLY, YOU REQUEST THAT A WORKABLE SPECIFICATION BE WRITTEN BY QUALIFIED ENGINEERING PERSONNEL AND THAT THE PROCUREMENT BE RESOLICITED. YOU ALSO POINT OUT THAT THE SOLICITATION FAILS TO DELINEATE WHETHER IT IS A REQUEST FOR PROPOSALS OR AN INVITATION FOR BIDS. IN ADDITION, YOU REQUEST CLARIFICATION AS TO WHETHER ANY INSTITUTION WHICH UTILIZES GOVERNMENT DONATED OR FURNISHED FUNDS IS REQUIRED TO COMPLY WITH THE FEDERAL PROCUREMENT REGULATIONS (FPR).

THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) HAS ADVISED OUR OFFICE THAT A SPECIAL PROJECT GRANT AWARDED TO HOWARD UNIVERSITY FOR THE PERIOD JULY 1, 1969, THROUGH JUNE 30, 1974, INCLUDES AUTHORITY FOR THE PURCHASE OF SOME CLOSED-CIRCUIT TELEVISION EQUIPMENT AND THE RENTAL OF COLOR TELEVISION EQUIPMENT. THE STATUTORY AUTHORITY PURSUANT TO WHICH THE GRANT WAS MADE, SECTION 772 OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 295F-2, DOES NOT IMPOSE THE REQUIREMENTS OF THE FPR ON A GRANT AWARD OR ANY PROCUREMENT BY A GRANTEE. ADDITIONALLY, THE GRANT POLICIES OF HEW APPLICABLE TO THE PROGRAM UNDER WHICH THE GRANT WAS ISSUED DO NOT REQUIRE THAT CONTRACTS FINANCED WITH SUCH FUNDS BE MADE IN COMPLIANCE WITH THE FPR, OR THAT GRANTEES SUBMIT THEIR PROCUREMENT PROCEDURES TO THE GOVERNMENT FOR APPROVAL.

WE HAVE HELD WITH REFERENCE TO FEDERAL GRANT FUNDS THAT THE EXPENDITURE OF THE FUNDS BY THE GRANTEE, FOR THE PURPOSES AND OBJECTS FOR WHICH MADE, IS NOT SUBJECT TO THE VARIOUS RESTRICTIONS AND LIMITATIONS IMPOSED BY FEDERAL STATUTE ON THE EXPENDITURE BY FEDERAL DEPARTMENTS AND ESTABLISHMENTS OF APPROPRIATED MONEYS, IN THE ABSENCE OF A CONDITION OF THE GRANT SPECIFICALLY PROVIDING TO THE CONTRARY. 43 COMP. GEN. 697, 699 (1964).

IN THE ABSENCE OF ANY PROVISION IN THE AUTHORIZING STATUTE OR IN THE TERMS OF THE GRANT AGREEMENT WITH HOWARD UNIVERSITY MAKING THE FPR APPLICABLE TO THE EXPENDITURE OF THE GRANT FUNDS, THE UNIVERSITY IS NOT REQUIRED TO COMPLY WITH THE FPR IN CONDUCTING THE PROCUREMENT IN QUESTION. IN THE CIRCUMSTANCES, THE ISSUE OF WHETHER THE SPECIFICATIONS SHOULD BE REWRITTEN AND THE PROCUREMENT RESOLICITED IS A MATTER SOLELY WITHIN THE DISCRETION OF THE UNIVERSITY.

AS TO THE APPLICABILITY OF THE FPR TO PROCUREMENTS UNDER GRANTS GENERALLY, YOU ARE ADVISED THAT AS A RULE THE GRANTEE IS NOT REQUIRED TO FOLLOW THE PROCEDURES SET OUT IN THE FPR UNLESS PROVIDED FOR BY THE TERMS OF THE AUTHORIZING STATUTE, THE IMPLEMENTING REGULATIONS OR THE SPECIFIC GRANT AGREEMENT.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.