B-173998, NOV 18, 1971

B-173998: Nov 18, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SELECTIVE SERVICE SYSTEM TO CONSUMATE THE PROCUREMENT IN THE EVENT THE MAXIMUM ORDER LIMITATION IS EXCEEDED. THE CONTRACTS WERE PROPERLY NEGOTIATED ON THE BASIS OF A DETERMINATION BY THE CONTRACTING OFFICER UNDER 41 U.S.C. 252(C)(2) THAT TIME DID NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. WHILE PROTESTANT'S OFFER BASED ON A 12-MONTH PERIOD MAY HAVE BEEN LOWER THAN ROYAL'S BASED ON A 9-MONTH PERIOD. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2. YOU HAVE SUGGESTED THREE SPECIFIC POTENTIAL PROBLEM AREAS RELATING TO THIS PROCUREMENT. WHICH DELEGATES THE AUTHORITY TO CONSUMMATE THE PROCUREMENT IN THE EVENT THAT THE MAXIMUM ORDER LIMITATION (MOL) IS EXCEEDED. THE PURPOSE OF THE DELEGATION WAS TO ALLOW SELECTIVE SERVICE TO MEET ITS OCTOBER.

B-173998, NOV 18, 1971

BID PROTEST - NEGOTIATED PROCUREMENT - ORAL SOLICITATION DECISION DENYING PROTEST AGAINST AWARD OF CONTRACTS TO ROYAL TYPEWRITER COMPANY AND OLIVETTI CORPORATION OF AMERICA UNDER A NEGOTIATED PROCUREMENT FOR RENTAL OF 2110 OCR TYPEWRITERS WITH AN OPTION TO BUY. GSA DELEGATED THE AUTHORITY TO THE DIRECTOR, SELECTIVE SERVICE SYSTEM TO CONSUMATE THE PROCUREMENT IN THE EVENT THE MAXIMUM ORDER LIMITATION IS EXCEEDED. THE CONTRACTS WERE PROPERLY NEGOTIATED ON THE BASIS OF A DETERMINATION BY THE CONTRACTING OFFICER UNDER 41 U.S.C. 252(C)(2) THAT TIME DID NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. FURTHER, VALID CONTRACTS MAY RESULT FROM ORAL SOLICITATIONS, THERE BEING NO FPR REQUIREMENT THAT SOLICITATION BE WRITTEN. FINALLY, WHILE PROTESTANT'S OFFER BASED ON A 12-MONTH PERIOD MAY HAVE BEEN LOWER THAN ROYAL'S BASED ON A 9-MONTH PERIOD, THE EXIGENCIES OF THE SITUATION WOULD NOT ALLOW THE PROCURING ACTIVITY TO CHANCE A DELIVERY DELAY WHICH WOULD BE CAUSED BY THE IMPENDING DOCK STRIKE ON THE EAST COAST; THUS AWARD HAD TO BE MADE TO COMPANIES WHOSE TYPEWRITERS WOULD BE WHOLLY MANUFACTURED WITHIN THE UNITED STATES.

TO OLYMPIA USA, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2, 1971, PROTESTING AGAINST CONTRACT AWARDS TO BOTH THE ROYAL TYPEWRITER COMPANY AND THE OLIVETTI CORPORATION OF AMERICA UNDER A NEGOTIATED PROCUREMENT FOR RENTAL OF 2110 OCR TYPEWRITERS WITH AN OPTION TO PURCHASE.

YOU HAVE SUGGESTED THREE SPECIFIC POTENTIAL PROBLEM AREAS RELATING TO THIS PROCUREMENT. FIRST, YOU QUESTION WHETHER THE NATIONAL HEADQUARTERS OF SELECTIVE SERVICE CAN PROCESS SUCH A HIGH DOLLAR VOLUME PROGRAM. THIS REGARD THE ADMINISTRATIVE FILE, PROVIDED US BY SELECTIVE SERVICE, CONTAINS A LETTER DATED MARCH 3, 1971, ADDRESSED TO THE DIRECTOR OF THE SELECTIVE SERVICE SYSTEM FROM THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION (GSA), WHICH DELEGATES THE AUTHORITY TO CONSUMMATE THE PROCUREMENT IN THE EVENT THAT THE MAXIMUM ORDER LIMITATION (MOL) IS EXCEEDED. THE PURPOSE OF THE DELEGATION WAS TO ALLOW SELECTIVE SERVICE TO MEET ITS OCTOBER, 1971, DEADLINE FOR ITS ADP SYSTEM. CONTRACTS WERE NEGOTIATED ON THE BASIS OF A DETERMINATION BY THE CONTRACTING OFFICER PURSUANT TO 41 U.S.C. 252(C)(2) THAT TIME DID NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. WHILE OFFERS ARE NORMALLY SOLICITED BY A WRITTEN REQUEST FOR PROPOSALS, VALID CONTRACTS MAY RESULT FROM ORAL SOLICITATIONS IN THE APPROPRIATE CIRCUMSTANCES. SEE 45 COMP. GEN. 374 (1966). WE FIND NOTHING IN THE FPR WHICH REQUIRES WRITTEN SOLICITATIONS.

THE SECOND CONTENTION YOU RAISE IS THAT THE SELECTIVE SERVICE DID NOT PROVIDE A SPECIFIC SET OF BIDDING INSTRUCTIONS, BUT THAT THE CONDITIONS OF THE BID WERE GENERALLY DEVELOPED BY THE VENDOR. SELECTIVE SERVICE HAS INFORMED US THAT DURING THE WEEKS OF AUGUST 2 AND AUGUST 9, 1971, THE CONTRACTING OFFICER CONTACTED EACH OF THE VENDORS OF OCR TYPEWRITERS LISTED IN THE FEDERAL SUPPLY SCHEDULE. AT THAT TIME HE ORALLY INFORMED THE VENDORS OF THE REQUIREMENTS. SINCE THE PROCUREMENT WAS FOR STANDARD ITEMS LISTED IN THE FEDERAL SUPPLY SCHEDULE, IT WAS DETERMINED THAT MORE SPECIFIC REQUIREMENTS WERE NOT NEEDED. VENDORS WERE REQUESTED TO SUBMIT OFFERS BY LETTER ON THE BASIS OF THESE REQUIREMENTS. NO VENDOR COMPLAINED AT THE TIME THAT HE DID NOT UNDERSTAND THE BIDDING INSTRUCTIONS.

FINALLY, YOU QUESTION THE FAILURE OF THE SELECTIVE SERVICE TO DISCLOSE THE TERMS OF THE AWARD. AWARD WAS MADE TO THE OLIVETTI CORPORATION OF AMERICA IN THE AMOUNT OF $122,715 FOR THE RENTAL OF FIFTEEN HUNDRED MODEL NO. EDITOR II OCR TYPEWRITERS FOR THE PERIOD OF OCTOBER 1, 1971, THROUGH JUNE 30, 1972, AND TO THE ROYAL TYPEWRITER COMPANY IN THE AMOUNT OF $60,664.50 FOR THE RENTAL OF SIX HUNDRED AND TEN MODEL NO. 568 OCT TYPEWRITERS FOR THE PERIOD OCTOBER 1, 1971, THROUGH JUNE 30, 1972. HAVE NOTED THAT YOUR OFFER BASED ON A 12 MONTH PERIOD IS LOWER THAN ROYAL'S OFFER FOR A 9-MONTH PERIOD. HOWEVER, THE EXIGENCIES OF THE SITUATION WOULD NOT ALLOW THE SELECTIVE SERVICE TO CHANCE A DELIVERY DELAY WHICH WOULD BE CAUSED BY THE IMPENDING DOCK STRIKE ON THE EAST COAST. THEREFORE, THE SELECTIVE SERVICE MADE AWARD TO COMPANIES WHOSE TYPEWRITERS WOULD BE MANUFACTURED WHOLLY WITHIN THE UNITED STATES.

IN CONSIDERATION OF THE ABOVE WE FIND NO LEGAL BASIS TO QUESTION THE VALIDITY OF THE AWARDS.