B-152027, FEB. 5, 1964

B-152027: Feb 5, 1964

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BY WHICH IT IS REQUIRED THAT GSA NEGOTIATE WITH LANDSVERK FOR ITS NEXT PROCUREMENT OF HIGH-RANGE DOSIMETERS FOR THE OFFICE OF CIVIL DEFENSE. WE ADVISED THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION THAT SINCE THE INVITATION PROVISIONS WITH RESPECT TO SAMPLES WERE USED TO DETERMINE YOUR "CAPABILITY TO MANUFACTURE" THE DOSIMETERS. YOUR BID SHOULD NOT HAVE BEEN REJECTED WITHOUT REFERRING THE MATTER TO THE SBA UNDER THE CERTIFICATE OF COMPETENCY PROCEDURE. THE ADMINISTRATION FURTHER ADVISES US THAT WHEN THE PROCUREMENT IS ISSUED. THERE ARE. INSTANCES WHEN IT IS IMPOSSIBLE TO OBTAIN COMPETITION ON A PARTICULAR ITEM. IN SUCH CASES IT IS NECESSARY TO PURCHASE WITHOUT THE BENEFIT OF COMPETITION.

B-152027, FEB. 5, 1964

TO LANDSVERK ELECTROMETER COMPANY:

WE REFER TO YOUR LETTER OF JANUARY 14, 1964, WHEREIN YOU SUGGEST A PROCEDURE BY WHICH YOUR FIRM COULD RECEIVE SOME RECOMPENSE FOR THE ACTION TAKEN ADVERSE TO YOUR FIRM BY THE GENERAL SERVICES ADMINISTRATION IN THE RECENT PROCUREMENT OF DOSIMETERS, CONSIDERED IN OUR DECISION B-152027, DATED DECEMBER 4, 1963. SPECIFICALLY, YOU SUGGEST THAT THIS OFFICE ISSUE AN AMENDMENT OR ADDITION TO DECISION B 152027, SUPRA, BY WHICH IT IS REQUIRED THAT GSA NEGOTIATE WITH LANDSVERK FOR ITS NEXT PROCUREMENT OF HIGH-RANGE DOSIMETERS FOR THE OFFICE OF CIVIL DEFENSE; THAT THE QUANTITY SHOULD BE AT LEAST 500,000 UNITS; AND THAT AN EQUITABLE PRICE COULD READILY BE ARRIVED AT IN VIEW OF PREVIOUS BIDDING.

IN B-152027, DECEMBER 4, 1963, WE ADVISED THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION THAT SINCE THE INVITATION PROVISIONS WITH RESPECT TO SAMPLES WERE USED TO DETERMINE YOUR "CAPABILITY TO MANUFACTURE" THE DOSIMETERS, YOUR BID SHOULD NOT HAVE BEEN REJECTED WITHOUT REFERRING THE MATTER TO THE SBA UNDER THE CERTIFICATE OF COMPETENCY PROCEDURE. HOWEVER, WE CONCLUDED THAT THE CONTRACT AWARDED TO ANOTHER BIDDER SHOULD NOT BE CANCELLED.

THE GENERAL SERVICES ADMINISTRATION ADVISES US THAT IT HAS NO CURRENT REQUEST FROM OCD FOR DOSIMETERS, BUT THAT THE USUAL ANNUAL REQUIREMENT FOR THIS ITEM MAY BE EXPECTED IN THE NEAR FUTURE. THE ADMINISTRATION FURTHER ADVISES US THAT WHEN THE PROCUREMENT IS ISSUED, YOUR FIRM SHALL BE INVITED TO SUBMIT A BID.

THE VARIOUS PROCUREMENT LAWS AND REGULATIONS REQUIRE THAT GOVERNMENT PROCUREMENTS SHALL BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT. THERE ARE, OF COURSE, INSTANCES WHEN IT IS IMPOSSIBLE TO OBTAIN COMPETITION ON A PARTICULAR ITEM; AND IN SUCH CASES IT IS NECESSARY TO PURCHASE WITHOUT THE BENEFIT OF COMPETITION. BUT WE FIND NO AUTHORITY UNDER LAW TO WAIVE THE REQUIREMENT FOR COMPETITION, TO RECOMPENSE A "WRONG" ACTION TAKEN ON A PRIOR PROCUREMENT. WHILE YOU MAY AGREE TO OFFER AN EQUITABLE PRICE, THE LAW REQUIRES THAT AWARD BE MADE TO THE ACCEPTABLE BIDDER OFFERING THE LOWEST PRICE OBTAINED AS A RESULT OF FULL AND FREE COMPETITION. IN SHORT, THE PROCUREMENT LAWS ARE NOT DESIGNED TO PERMIT THE REMEDIAL ACTION YOU SEEK.

WE BELIEVE THAT YOUR BID WAS REJECTED IN GOOD FAITH. WE WERE FACED WITH THE FACT THAT AWARD HAD ALREADY BEEN MADE TO BENDIX. PRIOR PRECEDENT SUGGESTED THE POSSIBILITY OF INSISTING UPON A REFERRAL TO SBA DESPITE THE AWARD (40 COMP. GEN. 106), OR PERMITTING THE AWARD ACTION TO GO UNDISTURBED. SEE 40 COMP. GEN. 339; 39 COMP. GEN. 503. OUR CONCLUSION TO TAKE THE LATTER COURSE OF ACTION WAS REACHED IN THE LIGHT OF WHAT APPEARED TO BEST SERVE THE INTEREST OF THE GOVERNMENT. ALTHOUGH YOUR BID WAS LOW BY A CONSIDERABLE AMOUNT, CONTRACT CANCELLATION, WITH RESULTING LOSSES TO THE BLAMELESS CONTRACTOR, WOULD HAVE RAISED THE POSSIBILITY OF SUBSTANTIAL DAMAGES AGAINST THE GOVERNMENT, (SEE JOHN R. REINER AND CO. V. THE UNITED STATES, CT.CL. NO. 431-57, DECEMBER 13, 963; BROWN AND SON ELECTRIC COMPANY V. THE UNITED STATES, CT.CL. 76-61, DECEMBER 13, 1963), AND WOULD HAVE CAUSED AN INDETERMINABLE LOSS IN TIME AND EFFORT.