B-170817, OCT. 12, 1970

B-170817, OCT. 12, 1970

BID PROTEST - NOTICE OF OFFERORS DENIAL OF PROTEST AGAINST SOLICITATION BY VETERANS ADMINISTRATION, MARKETING DIVISION, DRUGS & CHEMICALS HINES, III., FOR VACCINE MANUFACTURED FROM DOG KIDNEY. WHERE PROCURING AGENCY HAS SET DEADLINE FOR CONTRACT AWARD TO MAINTAIN CONTINUITY OF A PUBLIC VACCINATION PROGRAM AND ATTORNEYS FOR PROTESTANT HAVE FILED A COMPLAINT FOR A TEMPORARY RESTRAINING ORDER AND MEMORANDUM OF LAW IN SUPPORT THEREOF, THUS MAKING AN EXTENSIVE PRESENTATION OF PROTESTANT'S POSITION, THE COMP. GEN.'S REGULATION 4 C.F.R., PART 20, SEC. 20.1 ET SEQ., REQUIRING NOTICE AND REASONABLE OPPORTUNITY TO PRESENT VIEWS, IS NOT APPLICABLE AND THE PROTEST IS THEREFORE DENIED.

TO ARNOLD & PORTER:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 28, 1970, WITH ENCLOSURES, ON BEHALF OF PHILIPS ROXANE LABORATORIES, INCORPORATED, WITH REGARD TO OUR DECISION, B-170817, SEPTEMBER 25, 1970, DENYING YOUR PROTEST WITH RESPECT TO SOLICITATION NO. M5-Q44-71, ISSUED BY THE VETERANS ADMINISTRATION, MARKETING DIVISION, DRUGS AND CHEMICALS, HINES, ILLINOIS.

YOU ALLEGE THIS OFFICE FAILED TO FOLLOW ITS REGULATIONS STATING:

"THE COMPTROLLER GENERAL'S REGULATIONS 4 C.F.R., PART 20, SEC. 20.1, ET SEQ., PROVIDE THAT IN CIRCUMSTANCES AS PRESENTED BY THE INSTANT MATTER:

' ... NOTICE AND A REASONABLE OPPORTUNITY TO PRESENT VIEWS WILL BE GIVEN TO SUCH CONTRACTOR OR BIDDERS (OFFERORS) PRIOR TO REACHING A DECISION ON THE PROTEST, UNLESS THE COMPTROLLER GENERAL OR THE ASSISTANT COMPTROLLER GENERAL CERTIFIES THAT TIME AND CIRCUMSTANCES DO NOT PERMIT ... '

(ID. ST SEC. 20.2)"

IN OUR OPINION, THIS OFFICE DID NOT FAIL TO COMPLY WITH THE ABOVE QUOTED REGULATION. YOUR LETTER DATED SEPTEMBER 16, 1970, WITH THE ENCLOSED COPIES OF YOUR COMPLAINT FOR A TEMPORARY RESTRAINING ORDER AND MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR TEMPORARY RESTRAINING ORDER FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. 2700-70, PROVIDED AN EXTENSIVE PRESENTATION OF YOUR ALLEGATIONS. YOUR LETTER DATED SEPTEMBER 22, 1970, INFORMED US OF YOUR SCHEDULED MEETING WITH REPRESENTATIVES OF THE VETERANS ADMINISTRATION ON SEPTEMBER 28, 1970, BUT DID NOT INDICATE THAT YOU PLANNED TO SUBMIT ANY FURTHER ARGUMENTS TO THIS OFFICE. UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT YOU HAVE BEEN AFFORDED A REASONABLE OPPORTUNITY TO PRESENT YOUR VIEWS. CONSEQUENTLY, THE CERTIFICATION REFERRED TO IN THE ABOVE- QUOTED REGULATION WAS NOT REQUIRED.

FURTHERMORE, OUR DECISION DATED SEPTEMBER 25, 1970, STATES ESSENTIALLY THAT THE DETERMINATION AS TO THE PROCUREMENT OF VACCINE MANUFACTURED FROM DOG KIDNEY WAS BASED ON EXPERT MEDICAL OPINION AND AS SUCH IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. ADDITIONALLY, WE POINTED OUT THAT OUR DECISION DID NOT PRECLUDE THE CONTRACTING AGENCY FROM ALTERING THEIR MEDICAL DETERMINATION SUBSEQUENT TO YOUR MEETING ON SEPTEMBER 28, 1970.

IN VIEW OF THE FACT THAT THE VETERANS ADMINISTRATION INFORMED US THAT SEPTEMBER 29, 1970, WAS A DEADLINE FOR A CONTRACT AWARD IN ORDER TO MAINTAIN CONTINUITY OF THE PUBLIC VACCINATION PROGRAM, WE REJECT YOUR ASSERTION THAT WE HAVE ACTED WITH UNNECESSARY HASTE IN THIS MATTER.