B-163828, SEPT. 19, 1968

B-163828: Sep 19, 1968

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WE STATED THAT WE COULD REQUIRE CANCELLATION OF ONAN'S CONTRACT ONLY UPON A CONCLUSION THAT THE AWARD WAS SO CLEARLY OR PLAINLY INVALID THAT A COURT OF COMPETENT JURISDICTION WOULD DECLARE THE CONTRACT A NULLITY. YOU SUBMIT THAT UNDER THE PROVISIONS OF THE INVITATION AND PERTINENT REGULATIONS THE AWARD TO ONAN IS CLEARLY ILLEGAL AND. THAT OUR DECISION IS INCONSISTENT WITH FUNDAMENTAL PRINCIPLES OF COMPETITIVE ADVERTISED BIDDING AND PRIOR DECISIONS OF OUR OFFICE. WE HAVE REVIEWED YOUR ANALYSIS AND DISCUSSION OF OUR DECISION. WHICH WE BELIEVE WERE PROPERLY DISPOSED OF IN THE CONCLUSIONS REACHED IN OUR DECISION OF AUGUST 23. WHILE YOU APPARENTLY FEEL THAT WE SHOULD NOW ACCEPT YOUR CONCLUSIONS AS CORRECT IN LIEU OF THOSE THAT ARE STATED IN THE DECISION.

B-163828, SEPT. 19, 1968

TO FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA:

WE REFER TO YOUR LETTER OF SEPTEMBER 5, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-163828, AUGUST 23, 1968, WHICH DENIED YOUR PROTEST AGAINST THE AWARD OF A SINGLE-YEAR CONTRACT FOR GENERATOR SETS TO ONAN DIVISION OF STUDEBAKER CORPORATION UNDER IFB NO. DAAK-01-68-B-3303 ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND.

IN OUR DECISION OF AUGUST 23, WE STATED THAT WE COULD REQUIRE CANCELLATION OF ONAN'S CONTRACT ONLY UPON A CONCLUSION THAT THE AWARD WAS SO CLEARLY OR PLAINLY INVALID THAT A COURT OF COMPETENT JURISDICTION WOULD DECLARE THE CONTRACT A NULLITY. YOU SUBMIT THAT UNDER THE PROVISIONS OF THE INVITATION AND PERTINENT REGULATIONS THE AWARD TO ONAN IS CLEARLY ILLEGAL AND, IN ADDITION, THAT OUR DECISION IS INCONSISTENT WITH FUNDAMENTAL PRINCIPLES OF COMPETITIVE ADVERTISED BIDDING AND PRIOR DECISIONS OF OUR OFFICE.

WE HAVE REVIEWED YOUR ANALYSIS AND DISCUSSION OF OUR DECISION, TOGETHER WITH THE AUTHORITIES SUBMITTED IN SUPPORT OF YOUR POSITION. YOUR ARGUMENTS AND CONTENTIONS CONSIST MAINLY OF THE REPETITION OF POSITIONS ADVANCED PREVIOUSLY IN VARIOUS COMMUNICATIONS AND CONFERENCES WITH YOUR REPRESENTATIVES AND ATTORNEYS, WHICH WE BELIEVE WERE PROPERLY DISPOSED OF IN THE CONCLUSIONS REACHED IN OUR DECISION OF AUGUST 23. WHILE YOU APPARENTLY FEEL THAT WE SHOULD NOW ACCEPT YOUR CONCLUSIONS AS CORRECT IN LIEU OF THOSE THAT ARE STATED IN THE DECISION, IN OUR VIEW NEITHER YOUR PREVIOUSLY EXPRESSED INTERPRETATIONS OF THE SOLICITATION AND REGULATION PROVISIONS, NOR YOUR STATED OBJECTIONS TO VARIOUS ASPECTS OF OUR DECISION, PROVIDES AN ADEQUATE LEGAL BASIS FOR THE CONCLUSION THAT THE CONTRACT IS A NULLITY SO AS TO JUSTIFY OUR INTERFERENCE WITH THE AWARD.

ACCORDINGLY, UPON REVIEW OF THE MATTER OUR DECISION OF AUGUST 23 IS AFFIRMED.

FURTHER, WE ARE NOT PERSUADED BY YOUR CONTENTION THAT THE SUBJECT DECISION IS INCONSISTENT WITH B-155910, IN WHICH YOU CONTEND WE TOOK INTO ACCOUNT THE CANCELLATION CHARGES AS A NECESSARY ELEMENT FOR EVALUATION OF GENERAL ELECTRIC'S BID ON THE FIRST YEAR REQUIREMENT. IN OUR RECONSIDERATION OF THAT DECISION ON APRIL 7, 1965, WE ADVISED GENERAL ELECTRIC IN SUCH CONNECTION:

"WE DID NOT CONSIDER THE CANCELLATION CEILING AS A FACTOR IN EVALUATION. OUR COMPUTATION WAS MADE ONLY TO DEMONSTRATE THE UNLIKELIHOOD OF ANY PREJUDICE TO YOUR FIRM. * * *" ..END :

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