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B-154009, JUN. 5, 1964

B-154009 Jun 05, 1964
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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20. THE THIRD ITEM WAS A SEWER "RODER" (RODDER). AMENDMENT NO. 1 WAS ISSUED TO BROADEN THE SPECIFICATIONS ON ITEM NO. 3 TO PERMIT THE USE OF A CONTINUOUS ROD. BOTH THE INVITATION AND AMENDMENT WERE MAILED TO THE DELTA TOOL AND SUPPLY COMPANY. WHICH FIRM WAS LISTED ON A BROCHURE OF YOUR EQUIPMENT AS EXCLUSIVE DISTRIBUTOR FOR TENNESSEE. YOUR PRICE WAS $4. YOUR PROTEST IS BASED ON NON-RECEIPT OF THE AMENDMENT (ALTHOUGH YOU DO NOT SPECIFICALLY STATE THAT IT WAS NOT RECEIVED AT MEMPHIS). 000 SHOULD NOT BE SPENT FOR EQUIPMENT THAT IS NOT THE TYPE REQUIRED BY THE MOUNTAIN HOME FACILITY. IT IS REPORTED BY THE PROCURING AGENCY THAT EVERY EFFORT WAS MADE TO SECURE ADEQUATE COMPETITION ON THE INVITATION.

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B-154009, JUN. 5, 1964

TO FLEXIBLE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1964, PROTESTING AN AWARD UNDER INVITATION FOR BIDS NO. 64-40 ISSUED BY THE VETERANS ADMINISTRATION CENTER, MOUNTAIN HOME, TENNESSEE.

THE INVITATION, ISSUED ON MARCH 12, 1964, FOR OPENING ON MARCH 27, 1964, CALLED FOR BIDS ON THREE ITEMS. THE THIRD ITEM WAS A SEWER "RODER" (RODDER). ON MARCH 20, AMENDMENT NO. 1 WAS ISSUED TO BROADEN THE SPECIFICATIONS ON ITEM NO. 3 TO PERMIT THE USE OF A CONTINUOUS ROD, AS WELL AS SECTIONAL FLEXICHROME ROD. BOTH THE INVITATION AND AMENDMENT WERE MAILED TO THE DELTA TOOL AND SUPPLY COMPANY, POST OFFICE BOX 465, MEMPHIS, TENNESSEE, WHICH FIRM WAS LISTED ON A BROCHURE OF YOUR EQUIPMENT AS EXCLUSIVE DISTRIBUTOR FOR TENNESSEE. YOUR DALLAS OFFICE DID NOT RETURN THE AMENDMENT BUT SUBMITTED A BID ON ITEM 3 AS SPECIFIED IN THE ORIGINAL INVITATION. YOUR PRICE WAS $4,769.15 LESS $200 FOR TRADE-IN OR A NET PRICE OF $4,569.15. THE O BRIEN MANUFACTURING CORPORATION BID ON ITEM NO. 3, AS AMENDED, OFFERING TO FURNISH THE SEWER RODDER FOR $4,410.25, LESS $1,000 FOR TRADE-IN, OR A NEW PRICE OF $3,410.25.

YOUR PROTEST IS BASED ON NON-RECEIPT OF THE AMENDMENT (ALTHOUGH YOU DO NOT SPECIFICALLY STATE THAT IT WAS NOT RECEIVED AT MEMPHIS). YOU FURTHER STATE THAT SINCE ONLY ONE COMPANY BID ON ITEM NO. 3, AS AMENDED, YOU BELIEVE THE BIDS SHOULD BE REJECTED AND THE REQUIREMENT READVERTISED. ALSO, YOU STATE THAT ROUGHLY $4,000 SHOULD NOT BE SPENT FOR EQUIPMENT THAT IS NOT THE TYPE REQUIRED BY THE MOUNTAIN HOME FACILITY.

IT IS REPORTED BY THE PROCURING AGENCY THAT EVERY EFFORT WAS MADE TO SECURE ADEQUATE COMPETITION ON THE INVITATION, AND THAT THE AMENDMENT WAS ISSUED TO PERMIT THE BROADEST POSSIBLE COMPETITION. UNDER NORMAL CIRCUMSTANCES, THERE WAS SUFFICIENT TIME FOR THE AMENDMENT TO REACH ALL BIDDERS IN TIME TO BID. THE VETERANS ADMINISTRATION CENTER HAD NO KNOWLEDGE THAT YOUR LISTED DISTRIBUTOR IN MEMPHIS, TO WHOM BOTH THE INVITATION AND AMENDMENT WERE MAILED, WAS NOT BIDDING DIRECTLY AND THAT THE BID WOULD BE SUBMITTED FROM YOUR DALLAS HEADQUARTERS.

THE EXISTENCE OF ONLY ONE BID DOES NOT PRECLUDE A DETERMINATION AS TO THE REASONABLENESS OF THE PRICE QUOTED BY O-BRIEN MANUFACTURING CORPORATION ON ITEM 3, AND IT APPEARS THAT THE QUOTED PRICE CLOSELY MATCHES THE ESTIMATED COST SHOWN BY THE STATION ENGINEER OFFICER ON HIS ORIGINAL REQUEST. AS TO YOUR CONTENTION THAT THE O-BRIEN EQUIPMENT IS NOT WHAT WAS REQUIRED, BOTH THE CHIEF OF THE ENGINEERING DIVISION AND THE CHIEF OF THE SUPPLY DIVISION HAVE EXPRESSED THE OPINION THAT EITHER OF THE SEWER RODDING MACHINES OFFERED UNDER THE INVITATION WILL DO THE WORK NEEDED TO BE DONE AT THE STATION AND THAT BOTH MEET THE SPECIFICATIONS.

THE COURTS HAVE REPEATEDLY HELD THAT THE LAWS GOVERNING THE ADVERTISING AND AWARD OF PUBLIC CONTRACTS WERE ENACTED FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT. PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, 6 F.SUPP. 761. UNDER THIS RULE OF LAW, A BIDDER OR PROSPECTIVE BIDDER ACQUIRES NO RIGHTS BY VIRTUE OF THE FACT THAT HE DID NOT RECEIVE AN INVITATION OR AMENDMENTS THERETO, SINCE THE ADVERTISING STATUTES WERE NOT ENACTED FOR HIS BENEFIT. THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED.

IN THE PRESENT CASE, TWO RESPONSIVE BIDS WERE OBTAINED, AND WE FIND NO BASIS FOR OBJECTING TO THE AGENCY DETERMINATION THAT THE PRICE ACCEPTED WAS REASONABLE. IT IS, OF COURSE, TO BE REGRETTED THAT YOU WERE NOT IN A POSITION TO SUBMIT A BID ON THE ENLARGED SPECIFICATIONS AS A RESULT OF THE FAILURE OF THE AMENDMENT TO REACH YOUR DALLAS OFFICE. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO INSURE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THERE IS NO INDICATION THAT THE PROCUREMENT OFFICE DID NOT DO ALL THAT IT REASONABLY COULD HAVE IN THIS RESPECT, AND THE FACT THAT THE AMENDMENT DID NOT REACH YOUR DALLAS OFFICE DOES NOT APPEAR TO HAVE BEEN THE FAULT OF THE GOVERNMENT. CANCELLATION OF THE INVITATION AT THIS POINT WOULD CAUSE FURTHER DELAY AND ADDITIONAL EXPENSE TO THE GOVERNMENT IN UNDERTAKING A NEW PROCUREMENT OF THIS REQUIREMENT AND WOULD BE UNFAIR TO THE BIDDER WHOSE PRICE HAS BEEN EXPOSED.

FOR THE REASONS STATED, YOUR PROTEST AGAINST AN AWARD UNDER INVITATION FOR BIDS NO. 64-40 MUST BE DENIED.

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