B-143317, SEP. 15, 1960

B-143317, SEP. 15, 1960

TO GENERAL SERVICES CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25, 1960, YOUR LETTER OF AUGUST 17, 1960, AND TO A LETTER DATED AUGUST 12, 1960, FROM YOUR ATTORNEYS, SPIESS AND HACKNEY, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. SC-36-139-60-2489 ISSUED BY THE U.S. ARMY ELECTRONIC PROVING GROUND PROCUREMENT OFFICE, FORT HUACHUCA, ARIZONA.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY WHICH IS SELF-EXPLANATORY. AS A RESULT OF YOUR PROTEST WE ARE SUGGESTING TO THE SECRETARY OF DEFENSE THE ADVISABILITY OF ELIMINATING THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH REQUIRE THE REJECTION OF A BID NOT INCLUDING AN AFFIDAVIT AS TO AFFILIATES.

IN THE LETTER DATED AUGUST 12, 1960, FROM SPIESS AND HACKNEY, YOUR ATTORNEYS, AND YOUR LETTER OF AUGUST 17, 1960, IT IS CONTENDED THAT AWARD SHOULD NOT HAVE BEEN MADE AFTER THE PROTEST HAD BEEN PRESENTED TO THE CONTRACTING OFFICER. IN SUPPORT OF THIS POSITION, REFERENCE IS MADE TO PARAGRAPH 2-451, ARMY PROCUREMENT PROCEDURE, AND TO OUR DECISION OF JUNE 24, 1960, B-143073, WHERE A PROTEST OF A SIMILAR NATURE WAS REFERRED TO OUR OFFICE BEFORE AWARD WAS MADE.

THE CONTRACTING OFFICER IN HIS REPORT OF JULY 11, 1960, STATED THAT:

"AWARD WAS MADE IN ACCORDANCE WITH APP 2-451 ON AN URGENT BASIS DUE TO FOLLOWING:

"1. APP 30-1102 (B) STATES: "THE DURATION OF THIS TYPE CONTRACT MAY EXTEND BEYOND THE FISCAL YEAR FOR WHICH THE CONTRACT WAS EXECUTED PROVIDED: (I) THE DURATION OF PERFORMANCE OF THE CONTRACT DOES NOT EXCEED ONE CALENDAR YEAR, ..... .' PRESENT CONTRACT ON 30 JUNE WOULD HAVE BEEN IN EFFECT FOR 12 MONTHS.

"2. PLACEMENT OF CONTRACT IS EMERGENCY REQUIREMENT DUE TO SANITATION NECESSARY FOR HEALTH AND WELFARE OF TROOPS.

"3. DELAY IN PLACEMENT WOULD ACCRUE EXTRA COSTS TO THE GOVERNMENT IN ATTEMPT TO CONTINUE SERVICE FOR MONTH OF JULY BY ANY OTHER CONTRACTUAL ACTION.

"4. THE FURNISHING OF MEN AND SUPPLIES, FOR COMMENCEMENT OF SERVICES ON 1 JULY 1960 REQUIRED IMMEDIATE ACTIONS.'

PARAGRAPH 2-451, APP, PROVIDES THAT WHERE A PROTEST IS MADE PRIOR TO MAKING AN AWARD, THE AWARD SHALL NOT BE MADE PENDING RESOLUTION OF THE PROTEST, EXCEPT THAT AWARDS MAY BE MADE IN SUCH CASES WHERE THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED AND DELIVERY WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY. ON THE SAME DAY THAT AWARD WAS MADE, YOU WERE NOTIFIED BY LETTER OF THIS ACTION. THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THE CONTRACTING OFFICER'S STATEMENT AS TO URGENCY OF THE MATTER IS INCORRECT. AND WHILE IT MAY BE THAT IF THE MATTER HAD BEEN SUBMITTED TO OUR OFFICE AT OR ABOUT THE TIME OF OUR DECISION IN B-143073, OF JUNE 24, 1960, IN A SIMILAR MATTER, A DECISION MIGHT HAVE BEEN RENDERED IN TIME TO MAKE AN AWARD PRIOR TO JULY 1, 1960, THIS WAS DOUBTFUL AND BY NO MEANS CERTAIN. FURTHERMORE, THE INVITATION REQUIREMENT AS TO THE AFFIDAVIT CONCERNING AFFILIATES WAS CLEAR AND UNAMBIGUOUS. ITS TERMS REQUIRED THE REJECTION OF A BID WHERE IT WAS NOT ACCOMPANIED BY SUCH AN AFFIDAVIT AND THE REQUIREMENT WAS BASED ON THE PROVISIONS OF PARAGRAPH 2- 201 (A) (XXIII) OF ASPR. EVEN SO, AFTER YOU FURNISHED THE REQUIRED AFFIDAVIT WITH YOUR LETTER OF JUNE 14, 1960, AND REQUESTED THAT YOUR BID BE FAVORABLY CONSIDERED, THE CONTRACTING OFFICE TOOK UP THE MATTER BY TELEPHONE WITH THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, DEPARTMENT OF THE ARMY, AND THAT OFFICE IN TURN CONTACTED THE OFFICE OF THE JUDGE ADVOCATE GENERAL. IN A MEMORANDUM DATED JUNE 17, 1960, IT IS STATED THAT THE CONTRACTING OFFICE WAS ADVISED THAT IT HAD NO ALTERNATIVE OTHER THAN TO ENFORCE THE WORDING OF THE REQUIREMENT CONCERNING AN AFFIDAVIT AS TO AFFILIATES AND TO REJECT YOUR BID AS NONRESPONSIVE. VIEW OF THE REPORTED URGENCY IN THIS CASE, THE TERMS OF THE INVITATION AND OF ASPR, AND CONSIDERING THAT THE CONTRACTING OFFICER COULD NOT HAVE HAD NOTICE OF OUR DECISION OF JUNE 24, 1960, WHEN HE MADE THE AWARD ON JUNE 23, 1960, OUR OFFICE CANNOT FIND THAT THE CONTRACTING OFFICER ACTED IMPROPERLY, NOR DO WE FEEL THAT THE CIRCUMSTANCES JUSTIFY THE CANCELLATION OF THE CONTRACT WITH MAINTENANCE ENGINEERING, INC. ..END :