B-178928, JUL 17, 1973

B-178928: Jul 17, 1973

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WHICH PROVIDES THAT IT IS UNLAWFUL TO "DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY. PROCEDURES FOR RESTRAINING VIOLATIONS OF THE CITED ACTS AND OBTAINING REDRESS THEREFOR ARE SPECIFIED IN TITLE 15 OF THE CODE. THE ATTORNEY GENERAL OF THE UNITED STATES AND THE COURTS HAVE HELD THAT THE ROBINSON-PATMAN PRICE DISCRIMINATION ACT DOES NOT APPLY TO GOVERNMENT CONTRACTS. NOR THE IMPLEMENTING PROCUREMENT REGULATIONS REQUIRE THAT AWARDS BE DENIED TO BIDDERS WHO HAVE SUBMITTED BELOW-COST BIDS. WE HAVE REPEATEDLY HELD THAT WE ARE AWARE OF NO LEGAL PRINCIPLE ON THE BASIS OF WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED A BELOW- COST BID.

B-178928, JUL 17, 1973

DENIAL OF PROTEST OF TRANS-COUNTY SANITATION, INC., UNDER IFB NO. 620 1- 74, ISSUED BY VETERANS ADMINISTRATION HOSPITAL, BASED ON VIOLATIONS OF ROBINSON-PATMAN PRICE DISCRIMINATION ACT, 15 U.S.C. 13, AND FEDERAL TRADE COMMISSION ACT, 15 U.S.C. 45.

TO MR. ROBERT F. SARLO:

WE REFER TO LETTER 620/134 OF JUNE 14, 1973, REQUESTING A DECISION ON THE PROTEST OF TRANS-COUNTY SANITATION, INC., UNDER INVITATION FOR BIDS (IFB) NO. 620-1-74, ISSUED FOR TRASH AND GARBAGE REMOVAL SERVICE AT THE VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, FROM JULY 1, 1973, THROUGH JUNE 30, 1974.

TRANS-COUNTY MAINTAINS THAT VALLEY CARTING CORPORATION (VALLEY), THE LOW BIDDER UNDER THE IFB, HAS SUBMITTED A BELOW-COST BID FOR THE SERVICE AND, THEREFORE, HAS VIOLATED THE ROBINSON-PATMAN PRICE DISCRIMINATION ACT, 15 U.S.C. 13, WHICH PROVIDES THAT IT IS UNLAWFUL TO "DISCRIMINATE IN PRICE BETWEEN DIFFERENT PURCHASERS OF COMMODITIES OF LIKE GRADE AND QUALITY," AND THE FEDERAL TRADE COMMISSION ACT, 15 U.S.C. 45, WHICH DECLARES UNLAWFUL "UNFAIR METHODS OF COMPETITION IN COMMERCE." CONSEQUENTLY, TRANS -COUNTY MAINTAINS THAT VALLEY'S BID SHOULD NOT BE CONSIDERED FOR AWARD.

NOTHING IN THE CITED CODE PROVISIONS AUTHORIZES OUR OFFICE TO MAKE A DETERMINATION REGARDING THE DETAILS OF THE ALLEGED BELOW-COST ASPECTS OF VALLEY'S BID. B-158783, JUNE 17, 1966. PROCEDURES FOR RESTRAINING VIOLATIONS OF THE CITED ACTS AND OBTAINING REDRESS THEREFOR ARE SPECIFIED IN TITLE 15 OF THE CODE. FURTHER, THE ATTORNEY GENERAL OF THE UNITED STATES AND THE COURTS HAVE HELD THAT THE ROBINSON-PATMAN PRICE DISCRIMINATION ACT DOES NOT APPLY TO GOVERNMENT CONTRACTS. SEE 38 OP. ATTY. GEN. 539 (1936); GENERAL SHALE PRODUCTS CORPORATION V. STRUCK CONSTRUCTION CO., 37 F. SUPP. 598, AFFIRMED, 132 F.2D 425, CERTIORARI DENIED, 318 U.S. 780. ALSO, NEITHER THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT, 41 U.S.C. 251, ET SEQ., NOR THE IMPLEMENTING PROCUREMENT REGULATIONS REQUIRE THAT AWARDS BE DENIED TO BIDDERS WHO HAVE SUBMITTED BELOW-COST BIDS. MOREOVER, WE HAVE REPEATEDLY HELD THAT WE ARE AWARE OF NO LEGAL PRINCIPLE ON THE BASIS OF WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED A BELOW- COST BID. B-177567, APRIL 3, 1973; B-175262, JUNE 12, 1972.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO QUESTION AN AWARD TO VALLEY.