B-144967, MAY 15, 1961

B-144967, MAY 15, 1961

TO SOUTHWEST METALS COMPANY:

FURTHER REFERENCE IS MADE TO THE COPY OF A LETTER DATED JANUARY 31, 1961, WHICH WAS ADDRESSED TO THE WARNER ROBINS AIR MATERIEL AREA, ON YOUR BEHALF, BY LYNE, BLANCHETTE, SMITH AND SHELTON, ATTORNEYS AT LAW, PROTESTING THE ACTION TAKEN BY THE AIR MATERIEL AREA UNDER INVITATION NO. 09-603-S-61-11.

BY INVITATION NO. 09-603-S-61-11, DATED DECEMBER 5, 1960, THE WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA, OFFERED FOR SALE 251 ITEMS OF GOVERNMENT SURPLUS AIRCRAFT COMPONENTS AND ACCESSORIES. RESPONSE TO THE INVITATION 89 BIDS WERE RECEIVED AND OPENED ON JANUARY 11, 1961. AFTER AN EVALUATION OF THE BIDS, THERE WERE AWARDED ON JANUARY 17, 1961, AMONG OTHERS, ITEMS NOS. 245 AND 247 TO LAZAROV SURPLUS SALES COMPANY, INC., ON THE BASIS OF ITS BID OF $6.88 EACH FOR THE 51 BLADE ASSEMBLIES COVERED BY ITEM NO. 245 AND $11.83 EACH FOR THE 336 AIRCRAFT PROPELLER BLADES COVERED BY ITEM NO. 247. SUBSEQUENT TO THE AWARD YOU DIRECTED AN INQUIRY TO THE GOVERNMENT CONTRACTING OFFICER AS TO THE AMOUNT OF YOUR BID FOR ITEM NO. 247. AT THAT TIME THE CONTRACTING OFFICER FOUND THAT YOU HAD SUBMITTED THE HIGHEST BID OF $13 EACH FOR ITEM NO. 247, AND THE HIGHEST BID OF $7.80 EACH FOR ITEM NO. 245. FOR REASONS INDICATED HEREIN THE DEPARTMENT OF THE AIR FORCE DECIDED NOT TO CANCEL THE AWARD OF THESE TWO ITEMS TO LAZAROV SURPLUS SALES COMPANY, INC.

YOU STATED IN YOUR LETTER OF JANUARY 31, 1961, THAT SINCE YOU HAD NOT BEEN GIVEN A SATISFACTORY EXPLANATION AS TO WHY YOU WERE NOT AWARDED ITEMS NOS. 245 AND 247, THE PROPERTY COVERED BY THESE ITEMS SHOULD BE GIVEN TO YOU.

THE RECORD PERTAINING TO THE MATTER BEFORE US DISCLOSES THAT THE SALE UNDER INVITATION NO. 09-603-S-61-11 WAS A COMPLICATED TRANSACTION INVOLVING A TOTAL OF 89 BIDS AND 47 AWARDS. THE BIDS WERE SUBMITTED ON IDENTICAL ITEMS OR GROUPS OF ITEMS THAT RANGED FROM QUOTATIONS FOR 1 ITEM TO QUOTATIONS FOR FROM 1 TO 48 ITEMS AND IN TOTAL AMOUNTS FROM $81.90 TO $11,055.52. ADDING TO THE COMPLEXITY OF THE MATTER WAS THE FACT THAT SOME BIDDERS STIPULATED THAT THEY WOULD ACCEPT AWARDS ON CERTAIN ITEMS ONLY ON THE CONDITION THAT THEY ALSO WERE AWARDED OTHER SPECIFIED ITEMS. GOVERNMENT CONTRACTING OFFICER AND TWO OTHER EMPLOYEES WERE ASSIGNED THE TASK OF RECORDING THE BID PRICES ON THE "ABSTRACT OF BIDS" FORM AND DETERMINING THE HIGHEST BIDDERS. THE BIDS WERE SO RECORDED AND LATER RECHECKED AGAINST THE ABSTRACT. THERE WAS THEN PREPARED A RECAPITULATION OF THE LIST OF SUCCESSFUL BIDDERS TO RECHECK FOR POSSIBLE ERRORS AND A DUPLICATE CHECK WAS MADE OF THIS WORK. ON JANUARY 17, 1961, THE 47 SEPARATE AWARDS WERE TYPED, AND RECHECKED BEFORE BEING MAILED ON JANUARY 18, 1961. NOTWITHSTANDING THE OBVIOUS THOROUGHNESS OF THE GOVERNMENT CONTRACTING OFFICE PERSONNEL IN RECORDING, EVALUATING AND DETERMINING THE HIGH BIDS, THE ERRORS AS TO AWARDING ITEMS NOS. 245 AND 247 WERE MADE AND WENT UNDETECTED THROUGH ALL OF THE RECHECKING PROCESSES. THERE CAN BE NO DOUBT, OF COURSE, THAT THE AWARD OF ITEMS NOS. 245 AND 247 TO THE LAZAROV SURPLUS SALES COMPANY, INC., WAS IMPROPER. BUT IT IS ALSO CLEAR THAT THE AWARD RESULTED SOLELY FROM AN HONEST ERROR, THERE BEING NO EVIDENCE TO INDICATE THAT THE AWARD WAS MADE AND ACCEPTED IN OTHER THAN GOOD FAITH OR THAT THERE WAS ANY EXERCISE OF FAVORITISM ON THE PART OF GOVERNMENT PERSONNEL IN EFFECTING THE AWARD. PRIOR TO THE DISCOVERY OF THE ERROR THE AWARD WAS MADE AND THE LAZAROV CORPORATION, RELYING UPON THE PROPRIETY OF THAT ACTION, EXPENDED SUBSTANTIAL SUMS IN UNCRATING ALL OF THE BLADE ASSEMBLIES PREPARATORY TO REMOVING THE PROPERTY. IT WAS THEREFORE ADMINISTRATIVELY DETERMINED NOT TO DISTURB THE AWARD WHEN THE ERROR WAS DETECTED.

WHILE YOU UNQUESTIONABLY SHOULD HAVE RECEIVED THE AWARD OF ITEMS NOS. 245 AND 247, SINCE IT APPEARS THAT THE CONTRACT NOW HAS BEEN ENTIRELY COMPLETED, AN ATTEMPTED CANCELLATION OF THE CONTRACT WOULD NEITHER BE PRACTICAL NOR IN THE BEST INTERESTS OF THE GOVERNMENT. THE ADMINISTRATIVE ERROR IS REGRETTABLE BUT WE DO NOT FEEL THERE IS ANY JUSTIFIABLE BASIS FOR OUR TAKING ANY FURTHER ACTION IN THE MATTER.