B-150639, APR. 30, 1963

B-150639, APR. 30, 1963

TO MR. IRVING M. EWIG, C/O L. B. RUSSELL CHEMICALS, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 6 AND FEBRUARY 11, 1963, WITH ENCLOSURES, PROTESTING THE PROCEDURE FOLLOWED BY THE DEFENSE GENERAL SUPPLY AGENCY, RICHMOND 12, VIRGINIA, IN THE PROCUREMENT OF CERTAIN PHOTOGRAPHIC CHEMICALS UNDER INVITATION FOR BIDS NO. DSA-4-63-1431, DATED DECEMBER 11, 1962.

YOUR WASHINGTON GOVERNMENT SALES REPRESENTATIVE, MR. TED HUGHES, WAS PERMITTED TO EXAMINE THE REPORT SUBMITTED HERE BY THE DEFENSE SUPPLY AGENCY UNDER DATE OF FEBRUARY 15, 1963, AND THEREAFTER THERE WAS RECEIVED YOUR LETTER DATED FEBRUARY 27, 1963, RELATING FURTHER TO THE MATTER OF YOUR PROTEST. FOR THE REASONS SET FORTH IN YOUR LETTER, YOU STATED THAT THE DEPARTMENT OF THE NAVY, THE GALESKI PHOTO CENTER, AND YOUR CONCERN WERE "VICTIMIZED" BY THE WITHDRAWAL OF THE INVITATION FOR BIDS IN THIS CASE, AND YOU ASKED THAT YOUR CONCERN BE AWARDED COMPENSATION BECAUSE OF THE ACTION TAKEN.

WE ENCLOSE FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO THE GALESKI PHOTO CENTER, INC., THE SAME BEING SELF-EXPLANATORY. IT SEEMS NECESSARY TO REFER ONLY TO THE FOURTH PARAGRAPH OF YOUR LETTER OF FEBRUARY 27, 1963, TO THE EFFECT THAT SINCE THE GALESKI PHOTO CENTER WAS THE LOW BIDDER ON THE DEVELOPER PORTION OF THE INVITATION, THAT THAT CONCERN SHOULD HAVE RECEIVED THE AWARD (AS TO THAT ITEM), AND THAT IF CORROSION WAS THE BASIS FOR THE WITHDRAWAL, THEN THE FIXER TO BE SUPPLIED SHOULD HAVE BEEN QUESTIONED. THE RECORD INDICATES THAT ITEMS 1 AND 2 WERE NOT INTENDED TO BE SEVERABLE ITEMS, THE DEPARTMENT OF THE NAVY HAVING ADVISED THAT THE TWO ITEMS WERE REQUIRED TO BE THE PRODUCT OF THE SAME MANUFACTURER, AND THAT THE INVITATION FOR BIDS WAS DEFECTIVE IN NOT STATING THIS REQUIREMENT. UNDER THE CIRCUMSTANCES, IT APPEARS THAT IT WOULD HAVE BEEN NECESSARY TO CANCEL THE BIDS IN ANY EVENT.

WITH RESPECT TO YOUR REQUEST FOR COMPENSATION BECAUSE OF THE REJECTION OF BIDS, ASIDE FROM THE FACT THAT SUCH A CLAIM WOULD HAVE TO BE PRESENTED BY THE ACTUAL BIDDER, PHOTO INDUSTRIAL CORPORATION, NO LEGAL BASIS FOR LIABILITY ON THE PART OF THE GOVERNMENT EXISTS. YOUR ATTENTION IS INVITED TO PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION WHICH SPECIFICALLY RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ALL BIDS. HAS BEEN AUTHORITATIVELY HELD THAT THE ISSUANCE OF AN INVITATION IS FOR THE BENEFIT OF THE GOVERNMENT AND CONFERS NO ENFORCEABLE RIGHTS UPON BIDDERS. PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, 126. ACCORDINGLY, YOUR CLAIM FOR COMPENSATION MUST BE DENIED.