B-179966, FEB 15, 1974

B-179966: Feb 15, 1974

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AFFIDAVITS SUBMITTED BY PROTESTANT WERE INSUFFICIENT EVIDENCE TO PROVE COLLUSION AND FALSE CERTIFICATION BY PROSPECTIVE CONTRACTOR IN VIEW OF AFFIDAVIT SUBMITTED BY PROSPECTIVE CONTRACTOR DENYING ALL ALLEGATIONS. THE SOLICITATION WAS A 100 PERCENT SMALL BUSINESS SET-ASIDE. TWO BIDS WERE RECEIVED. DEL VAL ASPHALT CORPORATION (DEL VAL) WAS THE APPARENT LOW BIDDER. DEL VAL WAS REQUESTED TO VERIFY ITS BID BY A LETTER DATED OCTOBER 30. FROM ITS VICE- PRESIDENT ALLEGING AS THE BASIS FOR G. & B.'S PROTEST THAT THERE WAS COLLUSION BETWEEN DEL VAL AND H. IT WAS ALLEGED THAT DEL VAL FALSIFIED ITS BID UNDER ITEM 3 ("CONTINGENT FEE") OF REPRESENTATIONS. ASPR 1-115(F) PROVIDES THAT WHEN A CERTIFICATION IS SUSPECTED OF BEING FALSE OR THERE IS AN INDICATION OF COLLUSION.

B-179966, FEB 15, 1974

AFFIDAVITS SUBMITTED BY PROTESTANT WERE INSUFFICIENT EVIDENCE TO PROVE COLLUSION AND FALSE CERTIFICATION BY PROSPECTIVE CONTRACTOR IN VIEW OF AFFIDAVIT SUBMITTED BY PROSPECTIVE CONTRACTOR DENYING ALL ALLEGATIONS. CONSEQUENTLY, GAO CANNOT CONCLUDE THAT AWARD WOULD BE IMPROPER. HOWEVER, IF PROTESTANT HAS ADDITIONAL EVIDENCE SUPPORTING ITS ALLEGATIONS, IT SHOULD BE SUBMITTED TO NAVY FOR POSSIBLE COORDINATION WITH DEPARTMENT OF JUSTICE IN ACCORDANCE WITH ASPR'S 1 115(F) AND 1-111.

TO G. & B. CHEMICALS, INC.:

ON SEPTEMBER 27, 1973, THE NAVY SHIPS PARTS CONTROL CENTER (NSPCC), MECHANICSBURG, PENNSYLVANIA, ISSUED INVITATION FOR BIDS (IFB) NO. N00104- 74-B-0315 FOR THE PROCUREMENT OF 340,000 POUNDS EACH OF COMPOUNDS A AND B, COPOLYMER ELASTOMER THERMOSETTING COMPOUND TO BE MANUFACTURED IN ACCORDANCE WITH MIL-C-82633. THE SOLICITATION WAS A 100 PERCENT SMALL BUSINESS SET-ASIDE. BY THE SCHEDULED OPENING DATE, TWO BIDS WERE RECEIVED. DEL VAL ASPHALT CORPORATION (DEL VAL) WAS THE APPARENT LOW BIDDER. DEL VAL WAS REQUESTED TO VERIFY ITS BID BY A LETTER DATED OCTOBER 30, 1973. BY LETTER DATED NOVEMBER 2, 1973, DEL VAL CONFIRMED ITS OFFER.

ON OCTOBER 30, 1973, OUR OFFICE RECEIVED A TELEGRAM FROM COUNSEL FOR G. & B. CHEMICALS INCORPORATED (G. & B.), PROTESTING AGAINST THE PROPOSED AWARD OF THE CONTRACT TO DEL VAL. SUBSEQUENTLY, G. & B. SUBMITTED TWO AFFIDAVITS, DATED OCTOBER 24, 1973 AND OCTOBER 29, 1973, FROM ITS VICE- PRESIDENT ALLEGING AS THE BASIS FOR G. & B.'S PROTEST THAT THERE WAS COLLUSION BETWEEN DEL VAL AND H. H. ROBERTSON COMPANY (A PRIOR PRODUCER OF THIS ITEM AND AN ALLEGED LARGE BUSINESS CONCERN), WHICH ENABLED DEL VAL TO SUBMIT AN UNREALISTICALLY LOW BID. FURTHERMORE, IT WAS ALLEGED THAT DEL VAL FALSIFIED ITS BID UNDER ITEM 3 ("CONTINGENT FEE") OF REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS IN THE IFB IN ORDER TO HIDE THE EXISTENCE OF THE COLLUSION. IN RESPONSE, THE PRESIDENT OF DEL VAL SUBMITTED TO THE NAVY AN AFFIDAVIT DATED NOVEMBER 21, 1973, COMPLETELY DENYING G. & B.'S ALLEGATIONS.

WE DO NOT BELIEVE THAT THE AFFIDAVITS SUBMITTED BY G. & B.'S VICE PRESIDENT PROVIDE A SUFFICIENT BASIS TO CONCLUDE THAT AN AWARD TO DEL VAL WOULD BE IMPROPER. HOWEVER, ASPR 1-115(F) PROVIDES THAT WHEN A CERTIFICATION IS SUSPECTED OF BEING FALSE OR THERE IS AN INDICATION OF COLLUSION, THE MATTER SHALL BE PROCESSED IN ACCORDANCE WITH ASPR 1 111. THE LATTER SECTION PROVIDES FOR THE SECRETARY CONCERNED OR HIS REPRESENTATIVE TO REFER TO THE ATTORNEY GENERAL ANY EVIDENCE OF A NONCOMPETITIVE PRACTICE. ACCORDINGLY, IF G. & B. HAS ANY ADDITIONAL EVIDENCE TO SUPPORT ITS ALLEGATION, IT SHOULD BE FURNISHED TO THE DEPARTMENT OF THE NAVY FOR POSSIBLE COORDINATION WITH THE DEPARTMENT OF JUSTICE. B-176704, JANUARY 8, 1973.