B-143404, NOV. 25, 1960
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12. THAT THE SAID CONTRACT IS INVALID SINCE AWARD WAS NOT MADE UNTIL AFTER EXPIRATION OF THE FISCAL YEAR ENDING JUNE 30. THE PERIOD DURING WHICH THE APPROPRIATION ORIGINALLY TO BE CHARGED WAS AVAILABLE. IN THAT CASE IT WAS CONCLUDED THAT IN VIEW OF THE PROVISIONS OF SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1955. THE AVAILABILITY OF FUNDS WAS DEPENDENT UPON. WOULD BE OF QUESTIONABLE VALIDITY IF THE ONLY FUNDS FROM WHICH PAYMENT COULD BE MADE WERE FROM THE APPROPRIATION WHICH EXPIRED JUNE 30. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE COSTS TO BE INCURRED UNDER THE CONTRACT HAVE BEEN BUDGETED AGAINST THE CURRENT YEAR APPROPRIATION.
B-143404, NOV. 25, 1960
TO BROWN AND SON ELECTRIC COMPANY, INC.:
REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1960, ENCLOSING A COPY OF LETTER DATED NOVEMBER 2, 1960, PROTESTING TO THE PROCUREMENT AUTHORITIES AT ROBINS AIR FORCE BASE, AGAINST THE AWARD OF A CONTRACT TO AARON TORCH AND SONS, INC., UNDER INVITATION FOR BIDS NO. 09-603-60 103. YOU STATE, IN SUBSTANCE, THAT THE SAID CONTRACT IS INVALID SINCE AWARD WAS NOT MADE UNTIL AFTER EXPIRATION OF THE FISCAL YEAR ENDING JUNE 30, 1960, THE PERIOD DURING WHICH THE APPROPRIATION ORIGINALLY TO BE CHARGED WAS AVAILABLE. YOU CITE AS AUTHORITY FOR YOUR POSITION OUR DECISION OF SEPTEMBER 8, 1958, 38 COMP. GEN. 190, WHICH INVOLVED SOMEWHAT SIMILAR CIRCUMSTANCES.
IN THAT CASE IT WAS CONCLUDED THAT IN VIEW OF THE PROVISIONS OF SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1955, 68 STAT. 830, 31 U.S.C. 200, THE AVAILABILITY OF FUNDS WAS DEPENDENT UPON, AMONG OTHER REQUIREMENTS, THE EXISTENCE OF A BINDING AGREEMENT EXECUTED ON OR BEFORE THE LAST DAY OF THE FISCAL YEAR INVOLVED. IN THE APPLICATION OF THAT PRINCIPLE TO THE INSTANT CASE WE AGREE THAT THE CONTRACT AWARDED TO AARON TORCH AND SONS, INC., WOULD BE OF QUESTIONABLE VALIDITY IF THE ONLY FUNDS FROM WHICH PAYMENT COULD BE MADE WERE FROM THE APPROPRIATION WHICH EXPIRED JUNE 30, 1960. HOWEVER, WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE COSTS TO BE INCURRED UNDER THE CONTRACT HAVE BEEN BUDGETED AGAINST THE CURRENT YEAR APPROPRIATION, AND THEREFORE THE VALIDITY OF THE SAID CONTRACT IS NOT SUBJECT TO QUESTION ON THE BASIS WHICH YOU HAVE RAISED.
IN YOUR TELEGRAM OF NOVEMBER 22, 1960, YOU CONTEND THAT SINCE THE SIXTY DAY PERIOD WITHIN WHICH THE TORCH BID COULD BE ACCEPTED HAD EXPIRED PRIOR TO AWARD TO THAT FIRM, THE INVITATION SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED. SUCH ACCEPTANCE PERIOD MADE A CONDITION OF ITS OFFER IS SOLELY FOR THE PROTECTION OF THE BIDDER AND, OF COURSE, MAY BE WAIVED BY IT IF THEREAFTER THE COMPANY IS STILL WILLING TO ACCEPT AN AWARD. IT WAS DETERMINED THAT READVERTISEMENT WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT AND, SINCE YOUR OFFER WAS THIRD LOWEST AND EXCEEDED THE LOW BID BY APPROXIMATELY $32,000, SUCH ACTION CLEARLY WAS LEGAL AND PROPER.
FOR THE REASONS STATED, WE WOULD NOT BE JUSTIFIED IN REFUSING TO GIVE EFFECT TO THE CONTRACT AWARDED TO AARON TORCH AND SONS, INC., FOR THE PROJECT INVOLVED.