B-176813, SEP 8, 1972

B-176813: Sep 8, 1972

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AUTHORITY TO DETERMINE QUESTIONS OF PRICE CONFORMITY RESTS WITH THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL AND GAO IS THEREFORE PRECLUDED FROM MAKING THE REQUESTED DETERMINATION. THE PROPER ACTION IN THE EVENT THE PRICES ARE DETERMINED TO BE NON-CONFORMING IS TO ORDER A REDUCTION IN THE PRICES. MCMULLEN: WE ARE IN RECEIPT OF YOUR LETTER DATED AUGUST 16. YOUR PROTEST IS BASED UPON THE PREMISE THAT MYRON'S SUCCESSFUL BID WAS IN VIOLATION OF EXECUTIVE ORDERS 11615. THE MATERIAL FURNISHED WITH YOUR LETTER INDICATES THAT YOU HAVE FILED COMPLAINTS WITH THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL. OUR OFFICE IS THEREFORE PRECLUDED FROM DECIDING WHETHER THE PRICES OFFERED IN MYRON'S BID CONFORM TO THE REQUIREMENTS OF THE EXECUTIVE ORDERS.

B-176813, SEP 8, 1972

BID PROTEST - BID PRICE CONFORMITY - EXECUTIVE ORDER - GAO JURISDICTION DENIAL OF PROTEST ON BEHALF OF ANGLIN OFFICE EQUIPMENT AGAINST THE AWARD OF A CONTRACT TO MYRON'S OFFICE MACHINES UNDER A GSA SOLICITATION. UNDER THE TERMS OF EXECUTIVE ORDERS 11615, 11627, AND 11640, AND IMPLEMENTING REGULATIONS, AUTHORITY TO DETERMINE QUESTIONS OF PRICE CONFORMITY RESTS WITH THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL AND GAO IS THEREFORE PRECLUDED FROM MAKING THE REQUESTED DETERMINATION. FURTHER, THE PROPER ACTION IN THE EVENT THE PRICES ARE DETERMINED TO BE NON-CONFORMING IS TO ORDER A REDUCTION IN THE PRICES, NOT TO DECLARE THE CONTRACT INVALID.

TO ANDY J. MCMULLEN:

WE ARE IN RECEIPT OF YOUR LETTER DATED AUGUST 16, 1972, WITH ENCLOSURES, PROTESTING ON BEHALF OF ANGLIN OFFICE EQUIPMENT AGAINST THE AWARD OF A CONTRACT TO MYRON'S OFFICE MACHINES (MYRON'S) UNDER A GENERAL SERVICES ADMINISTRATION (GSA) SOLICITATION.

YOUR PROTEST IS BASED UPON THE PREMISE THAT MYRON'S SUCCESSFUL BID WAS IN VIOLATION OF EXECUTIVE ORDERS 11615, 11627 AND 11640 WHICH PERTAIN TO WAGE -PRICE STANDARDS, AND THE MATERIAL FURNISHED WITH YOUR LETTER INDICATES THAT YOU HAVE FILED COMPLAINTS WITH THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL. UNDER THE TERMS OF THE REFERENCED EXECUTIVE ORDERS AND IMPLEMENTING REGULATIONS, AUTHORITY TO DECIDE QUESTIONS OF THIS NATURE RESTS WITH THE CONTRACTING AGENCY AND THE COST OF LIVING COUNCIL, AND OUR OFFICE IS THEREFORE PRECLUDED FROM DECIDING WHETHER THE PRICES OFFERED IN MYRON'S BID CONFORM TO THE REQUIREMENTS OF THE EXECUTIVE ORDERS.

YOU ALSO CONTEND THAT IN THE EVENT IT IS DETERMINED THAT MYRON'S PRICES DO NOT CONFORM TO THE EXECUTIVE ORDERS SUCH A FINDING WOULD REQUIRE MYRON'S BID TO BE DECLARED VOID UNDER PARAGRAPH 14.A. OF THE PRICE CERTIFICATIONS PROVISIONS OF THE SOLICITATION WHEREIN THE BIDDER CERTIFIES:

"*** THAT THE PRICES BID HEREIN CONFORM TO THE REQUIREMENTS OF EXECUTIVE ORDER 11640, JANUARY 26, 1972, AND ANY AMENDMENTS THERETO OR SUPERSEDENCE THEREOF, OR (THE PRICES) SHALL BE REDUCED ACCORDINGLY AT THE TIME OF ANY BILLINGS THAT ARE MADE DURING THE EFFECTIVE PERIOD OF THE EXECUTIVE ORDER."

SINCE, IN OUR VIEW, THE QUOTED PROVISION CLEARLY CONTEMPLATES (INSOFAR AS THE PROCUREMENT IS CONCERNED) THE REMEDY OF A REDUCTION IN THE BILLINGS MADE UNDER THE CONTRACT WHERE THE PRICES CERTIFIED ARE FOUND TO BE NONCONFORMING, WE CANNOT ACCEPT YOUR POSITION THAT THE VALIDITY OF THE AWARD MAY BE AFFECTED UNDER SUCH PROVISION BY THE FINAL DECISION ON YOUR COMPLAINTS WITH THE COST OF LIVING COUNCIL AND THE AGENCY.

IN THE CIRCUMSTANCES, NO FURTHER ACTION BY OUR OFFICE IS CONTEMPLATED AND WE ARE CLOSING OUR FILE IN THE MATTER.