B-150674, MAR. 4, 1963

B-150674: Mar 4, 1963

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TO THE HOUSTON FEARLESS CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 31. YOUR ATTORNEY STATES THAT HE IS AUTHORIZED TO WITHDRAW THE PROTEST OF JANUARY 31 WHICH WAS DIRECTED AGAINST THE CANCELLATION OF THE CITED INVITATION FOR BIDS. WE HAVE CONCLUDED THAT THE ACTION OF THE CONTRACTING OFFICER IN CANCELING THE INVITATION WAS PROPER. ON PAGE 3 OF YOUR LETTER OF FEBRUARY 18 YOU SUGGEST THAT THE USE OF THE SPECIAL TOOLING CLAUSE IN THE SECOND INVITATION FOR BIDS WAS IMPROPER IN VIEW OF THE FACT THAT IN A LETTER OF JULY 11. THE LETTER REFERRED TO IS APPARENTLY OUR LETTER TO THE SECRETARY OF DEFENSE. IN REGARD TO THIS MATTER WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE DEFENSE ESTABLISHMENT THAT A SUBCOMMITTEE HAS UNDER ACTIVE CONSIDERATION A COMPLETE REVISION OF THE ENTIRE SECTION 13 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND THAT IT IS ANTICIPATED THAT THE REVISION WILL BE ACCOMPLISHED WITHIN 60 TO 90 DAYS.

B-150674, MAR. 4, 1963

TO THE HOUSTON FEARLESS CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 31, 1963, AND FEBRUARY 4, 1963, RESPECTIVELY, AND THE LETTER OF FEBRUARY 18, 1963, FROM YOUR ATTORNEY, IN REGARD TO THE CANCELLATION OF INVITATION FOR BIDS NO. 195-307-63/K) ISSUED BY THE U.S. NAVY ORDNANCE SUPPLY OFFICE, MECHANICSBURG, PENNSYLVANIA.

IN THE LETTER OF FEBRUARY 18, 1963, YOUR ATTORNEY STATES THAT HE IS AUTHORIZED TO WITHDRAW THE PROTEST OF JANUARY 31 WHICH WAS DIRECTED AGAINST THE CANCELLATION OF THE CITED INVITATION FOR BIDS. WE HAVE CONCLUDED THAT THE ACTION OF THE CONTRACTING OFFICER IN CANCELING THE INVITATION WAS PROPER.

ON PAGE 3 OF YOUR LETTER OF FEBRUARY 18 YOU SUGGEST THAT THE USE OF THE SPECIAL TOOLING CLAUSE IN THE SECOND INVITATION FOR BIDS WAS IMPROPER IN VIEW OF THE FACT THAT IN A LETTER OF JULY 11, 1962, OUR OFFICE RECOMMENDED THAT THE CLAUSE BE PROHIBITED IN ADVERTISED PENDING CERTAIN REVISIONS. THE LETTER REFERRED TO IS APPARENTLY OUR LETTER TO THE SECRETARY OF DEFENSE, B-149186. IN REGARD TO THIS MATTER WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE DEFENSE ESTABLISHMENT THAT A SUBCOMMITTEE HAS UNDER ACTIVE CONSIDERATION A COMPLETE REVISION OF THE ENTIRE SECTION 13 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND THAT IT IS ANTICIPATED THAT THE REVISION WILL BE ACCOMPLISHED WITHIN 60 TO 90 DAYS. WHILE WE DID RECOMMEND THE DISCONTINUANCE OF THE SPECIAL TOOLING CLAUSE PENDING THE REVISION OF ASPR 13-504, THERE IS NO SHOWING THAT THE USE OF THIS CLAUSE OPERATES TO THE PREJUDICE OF A BIDDER SO AS TO DEPRIVE HIM OF A CONTRACT TO WHICH HE MAY BE OTHERWISE ENTITLED. THE MAIN BASIS OF OUR OBJECTION TO THE USE OF THE SPECIAL TOOLING CLAUSE AS PRESCRIBED BY ASPR 13-504 WAS THAT IT FAILED TO GIVE THE GOVERNMENT THE RIGHT TO SPECIAL TOOLING IN CERTAIN CASES UNDER PARAGRAPHS (A) AND (K).

IN VIEW OF THE FOREGOING WE CONCLUDE THAT THE USE OF THE SPECIAL TOOLING CLAUSE AS CONTAINED IN ASPR 13-504 IN THE SECOND INVITATION WILL NOT BE REGARDED AS INVALIDATING ANY AWARD OF A CONTRACT THAT MAY BE MADE AS A RESULT THEREOF.

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