B-162900, MAY 28, 1968
Highlights
EVANS: REFERENCE IS MADE TO YOUR LETTER OF MAY 9. WE HELD THAT THERE WAS NO LEGAL BASIS TO QUESTION THE ACTIONS TAKEN BY THE CONTRACTING OFFICER. WHILE FROM A TECHNICAL STANDPOINT IT IS POSSIBLE TO INTERPRET THE SPECIFICATIONS AS REQUIRING THE CONTRACTOR. SUCH INTERPRETATION IS CONTRARY TO GOOD BUSINESS PRACTICE. THE SECOND POINT YOU MAKE IS THAT. UPON DISCOVERING THAT FORT CARSON WAS PREPARED TO ACCEPT SUBSPECIFICATION MATERIAL FROM TOWER CONSTRUCTION. THE CASTLE CONCRETE COMPANY ADVISED THE CONTRACTING OFFICER THAT IT WAS PREPARED TO FURNISH THE SAME MATERIAL FROM AN IMMEDIATELY AVAILABLE SUPPLY AT A BETTER PRICE THAN TOWER CONSTRUCTION. SINCE THE MATERIAL WAS IMMEDIATELY AVAILABLE FROM YOUR CLIENT.
B-162900, MAY 28, 1968
TO MR. PAUL V. EVANS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1968, FURTHER CONCERNING THE PROTEST OF THE CASTLE CONCRETE COMPANY AGAINST THE PERFORMANCE OF CONTRACT NO. DABE01-67-C-2866 BY THE TOWER CONSTRUCTION COMPANY. BY DECISION B- 162900 OF APRIL 24, 1968, TO YOU, WE HELD THAT THERE WAS NO LEGAL BASIS TO QUESTION THE ACTIONS TAKEN BY THE CONTRACTING OFFICER.
FIRST YOU STATE THAT, WHILE FROM A TECHNICAL STANDPOINT IT IS POSSIBLE TO INTERPRET THE SPECIFICATIONS AS REQUIRING THE CONTRACTOR, RATHER THAN THE BIDDER, TO FURNISH A SAMPLE OF THE AGGREGATE TO BE FURNISHED UNDER THE CONTRACT, SUCH INTERPRETATION IS CONTRARY TO GOOD BUSINESS PRACTICE. HOWEVER, THE SPECIFICATION CLEARLY PLACES THE RESPONSIBILITY ON THE "CONTRACTOR" TO FURNISH THE SAMPLE. THUS, EVEN THOUGH THE SAMPLE- FURNISHING REQUIREMENT MAY NOT BE GOOD BUSINESS PRACTICE, THE CONTRACT SPECIFICATION ITSELF RENDERS YOUR OBJECTION ACADEMIC.
THE SECOND POINT YOU MAKE IS THAT, UPON DISCOVERING THAT FORT CARSON WAS PREPARED TO ACCEPT SUBSPECIFICATION MATERIAL FROM TOWER CONSTRUCTION, THE CASTLE CONCRETE COMPANY ADVISED THE CONTRACTING OFFICER THAT IT WAS PREPARED TO FURNISH THE SAME MATERIAL FROM AN IMMEDIATELY AVAILABLE SUPPLY AT A BETTER PRICE THAN TOWER CONSTRUCTION. SINCE THE MATERIAL WAS IMMEDIATELY AVAILABLE FROM YOUR CLIENT, YOU CHALLENGE THE ADMINISTRATIVE REPRESENTATION THAT THE NECESSITY FOR THE CONTINUITY OF OPERATION AT FORT CARSON WAS THE URGENT REASON FOR ACCEPTING THE SUBSPECIFICATION MATERIAL. HOWEVER, THE FACT THAT YOUR CLIENT ALSO WAS PREPARED TO FURNISH SUBSPECIFICATION MATERIAL FROM AN IMMEDIATELY AVAILABLE SUPPLY DOES NOT OVERCOME THE ADMINISTRATIVE DETERMINATION THAT THE EXISTING CONTRACT SHOULD NOT BE DISRUPTED BECAUSE OF THE URGENT NECESSITY FOR THE CONTINUITY OF THE PROJECT. WE ARE NOT AWARE OF ANY BASIS UPON WHICH THE CONTRACTING OFFICE COULD HAVE TERMINATED THE CONTRACTOR'S PERFORMANCE BECAUSE OF SUBSPECIFICATION MATERIAL AND PROPERLY AWARDED THE PROJECT TO YOUR CLIENT WHO ALSO WOULD FURNISH SUBSPECIFICATION MATERIAL. THE DETERMINATION WHETHER TO TERMINATE THE EXISTING CONTRACT FOR NONCONFORMANCE BY THE CONTRACTOR OR TO CONTINUE IT WITH APPROPRIATE PRICE REDUCTIONS INVOLVES THE EXERCISE OF ADMINISTRATIVE DISCRETION BY THE PROCUREMENT AGENCY AS TO WHICH OUR OFFICE DOES NOT INTERFERE.
ACCORDINGLY, WE FIND NO BASIS FOR OUR OFFICE TO TAKE ANY FURTHER ACTION WITH RESPECT TO THE SUBJECT CONTRACT.