B-148474, AUG. 20, 1962
Highlights
UNITED STATES INFORMATION AGENCY: REFERENCE IS MADE TO LETTER DATED AUGUST 2. WHEREIN WE HELD THAT THE CONTRACT AWARDED TO AMERICAN NEWS COMPANY UNDER INVITATION FOR BIDS NO. 62-117-8-C WAS IMPROPER AND SHOULD BE CANCELED. THE BASIS OF OUR DECISION WAS THAT STATED IN THE PARAGRAPH STARTING ON PAGE 6 THEREOF AND WAS TO THE EFFECT THAT YOUR AGENCY'S ACTION. WAS IMPROPER. THE REQUEST FOR RECONSIDERATION IS BASED MAINLY ON THE NEW EVIDENCE FURNISHED THAT OUR OFFICE HAS MISCONSTRUED THE NO-DISCOUNT POLICY OF THE CURTIS CIRCULATION COMPANY. TO AMERICAN IN WHICH IT STATES THAT IT IS NOT CONCERNED REGARDING THE ULTIMATE PRICE QUOTED BY ANY CATALOG AGENCY. IT IS UNDERSTOOD THAT CURTIS DOES NOT OBJECT TO THE CONTRACT AWARDED TO AMERICAN BECAUSE AMERICAN HAD NOT OFFERED ANY DISCOUNT ON THE CURTIS PUBLICATIONS AS SUCH BUT ONLY ON THE TOTAL VALUE OF AN ORDER FOR MAGAZINES.
B-148474, AUG. 20, 1962
TO DIRECTOR, UNITED STATES INFORMATION AGENCY:
REFERENCE IS MADE TO LETTER DATED AUGUST 2, 1962, FROM THE GENERAL COUNSEL OF YOUR AGENCY, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 10, 1962, WHEREIN WE HELD THAT THE CONTRACT AWARDED TO AMERICAN NEWS COMPANY UNDER INVITATION FOR BIDS NO. 62-117-8-C WAS IMPROPER AND SHOULD BE CANCELED.
THE BASIS OF OUR DECISION WAS THAT STATED IN THE PARAGRAPH STARTING ON PAGE 6 THEREOF AND WAS TO THE EFFECT THAT YOUR AGENCY'S ACTION, IN SOLICITING BIDS SUBJECT TO CONDITIONS WHICH NO BIDDER COULD OFFER ASSURANCE OF FULFILLMENT, WAS IMPROPER. THE REQUEST FOR RECONSIDERATION IS BASED MAINLY ON THE NEW EVIDENCE FURNISHED THAT OUR OFFICE HAS MISCONSTRUED THE NO-DISCOUNT POLICY OF THE CURTIS CIRCULATION COMPANY. SUBSTANTIATION OF ITS POLICY, CURTIS HAS ADDRESSED A LETTER ON JULY 24, 1962, TO AMERICAN IN WHICH IT STATES THAT IT IS NOT CONCERNED REGARDING THE ULTIMATE PRICE QUOTED BY ANY CATALOG AGENCY, SO LONG AS THAT AGENCY ABIDES BY ITS INSTRUCTIONS REGARDING THE LISTING AND PRICING OF ITS PUBLICATIONS. IT IS UNDERSTOOD THAT CURTIS DOES NOT OBJECT TO THE CONTRACT AWARDED TO AMERICAN BECAUSE AMERICAN HAD NOT OFFERED ANY DISCOUNT ON THE CURTIS PUBLICATIONS AS SUCH BUT ONLY ON THE TOTAL VALUE OF AN ORDER FOR MAGAZINES.
IT IS NOTED THAT FOUR BIDS HAD BEEN RECEIVED IN RESPONSE TO THE INVOLVED INVITATION. TWO BIDDERS, INCLUDING AMERICAN, HAD OFFERED A 10 PERCENT TRADE DISCOUNT WITHOUT ANY EXCEPTIONS. TWO OTHER BIDDERS, INCLUDING NATIONAL MAGAZINE SALES CORPORATION, HAD OFFERED TRADE DISCOUNTS, WITH EXCEPTIONS THERETO. THUS, IT APPEARS THAT THERE WAS NO UNIFORMITY OF AGREEMENT AMONG THE BIDDERS AS TO WHETHER THE NO DISCOUNT POLICY OF CURTIS WOULD PREVENT THE SUCCESSFUL BIDDER FROM FULFILLING HIS CONTRACT. ASIDE FROM THE FACT THAT ORDINARILY THERE IS NO PRIVITY OF CONTRACT BETWEEN THE GOVERNMENT AND THE CONTRACTOR'S SUPPLIER OR SUBCONTRACTOR AND THAT IT IS THE PRIMARY CONCERN OF A CONTRACTOR TO ASCERTAIN WHETHER HE CAN FULFILL A CONTRACT, THE EVIDENCE NOW FURNISHED CONTRADICTS THE BASIC PREMISE ON WHICH OUR DECISION WAS BASED.
ACCORDINGLY, ON THE BASIS OF THE ADDITIONAL EVIDENCE FURNISHED NO ACTION NEED BE TAKEN TO CANCEL THE CONTRACT AWARDED TO AMERICAN.