B-152486, DEC. 6, 1963

B-152486, DEC. 6, 1963

TO TURCO PRODUCTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1963, PROTESTING THE ACTION TAKEN BY ROBINS AIR FORCE BASE TO CANCEL CONTRACT 09/603/-50018 AWARDED TO YOUR FIRM.

INVITATION FOR BIDS 09-603-63-68 WAS ISSUED BY WARNER ROBINS AIR MATERIEL AREA ON JANUARY 24, 1963, WITH AN OPENING DATE OF FEBRUARY 8, 1963. THE INVITATION CALLED FOR ANNUAL REQUIREMENTS FOR AN ESTIMATED QUANTITY OF 36,000 GALLONS OF CLEANING SOLUTION, TURCO WIPE SOLVENT NO. 657 AS MANUFACTURED BY TURCO PRODUCTS, INCORPORATED, OR EQUAL. EIGHT BIDS WERE RECEIVED AS FOLLOWS:

TABLE NO. BIDDER PER GALLON TOTAL PRICE 1. BARRETT CHEMICAL CO. $3.00 $108,000 2. KOR CORPORATION 1.75

63,000 3. OCTAGON PROCESS, INC. 1.67 60,120 4. RISANLO, INC. 1.785 64,260 5. TEXO CORP. 1.93

69,480 6. TURCO PRODUCTS, INC. 2.86 102,960 7. VIKING LABORATORIES, INC. 1.78 64,080 8. PENNSALT CHEMICAL CORP. 1.75 63,000

AFTER THE BIDS WERE OPENED, THE BIDDERS WERE REQUIRED TO SUBMIT SAMPLES OF THEIR PRODUCTS FOR TESTING AT THE WARNER ROBINS AIR MATERIEL AREA CHEMICAL LABORATORY. BIDDERS 4, 5, 7 AND 8 WERE REJECTED BECAUSE THE PRODUCTS OFFERED CONTAINED EXCESSIVE RESIDUE. BIDDERS 2 AND 3 WERE REJECTED BECAUSE THE PRODUCTS OFFERED HAD AN UNACCEPTABLE LOW FLASH POINT. CONSEQUENTLY, CONTRACT AF 09/603/-50018 WAS AWARDED ON APRIL 9, 1963, TO YOUR FIRM.

BY LETTER OF APRIL 18, 1963, TEXO CORPORATION PROTESTED THE AWARD OF THE CONTRACT ALLEGING THAT ITS PRODUCT SHOWED .0 PERCENT RESIDUE AS A RESULT OF TESTS CONDUCTED BOTH BEFORE AND AFTER THE TEST MADE BY THE GOVERNMENT ACTIVITY. HEADQUARTERS UNITED STATES AIR FORCE REVIEWED THE PROTEST AND SUSTAINED IT IN PART. AS THE RESULT, WARNER ROBINS AIR MATERIEL AREA WAS DIRECTED TO OBTAIN NEW SAMPLES FROM TEXO, RISANLO, VIKING AND PENNSALT. TESTS WERE CONDUCTED AND THE SAMPLES OF EACH FIRM EXCEPT RISANLO MET THE REQUIREMENTS OF INVITATION FOR BIDS 09-603-63-68. ON OCTOBER 29, 1963, HEADQUARTERS UNITED STATES AIR FORCE INSTRUCTED WARNER ROBINS AIR MATERIEL AREA TO CANCEL THE CONTRACT WITH YOU FOR THE CONVENIENCE OF THE GOVERNMENT AND TO PROCURE THEIR ANNUAL REQUIREMENTS BY A FORMALLY ADVERTISED PROCUREMENT WITH A SAMPLE PROVISION.

IT IS YOUR CONTENTION THAT ALL BIDDERS RESPONDING TO INVITATION FOR BIDS 09-603-63-68 WERE GIVEN FAIR AND EQUAL OPPORTUNITY TO COMPETE FOR THE REQUIREMENT CALLED FOR IN THE INVITATION; THAT TESTS ESTABLISHED THAT NO OTHER SUPPLIER WAS QUALIFIED TO FURNISH A SUITABLE PRODUCT TO MEET THIS REQUIREMENT AT THE TIME THE CONTRACT WAS LET; THAT THE CANCELLATION OF CONTRACT AF 09/603/-50018 FOR REASONS OTHER THAN NON PERFORMANCE BY YOUR FIRM OR DUE TO A DISCONTINUANCE OF THE REQUIREMENTS OF ROBINS AIR FORCE BASE FOR THE COMPOUND SPECIFIED IN THE CONTRACT IS IN VIOLATION OF THE CONTRACT; THAT THE RETESTING OF COMPETITIVE MATERIALS WITH INTENTION OF CONTRACT CANCELLATION WAS NOT FAIR AND EQUITABLE TO YOUR FIRM AND THAT CANCELLATION OF THE CONTRACT WILL WORK AN UNWARRANTED AND UNDESERVED FINANCIAL HARDSHIP ON YOUR FIRM DUE TO YOUR HAVING PLANNED AND ARRANGED IN GOOD FAITH TO SUPPLY THIS REQUIREMENT UNTIL APRIL 30, 1964.

PARAGRAPH 23 OF THE CONTRACT PROVIDES THAT THE PERFORMANCE OF WORK UNDER THE CONTRACT MAY BE TERMINATED BY THE GOVERNMENT IN WHOLE, OR FROM TIME TO TIME IN PART, WHENEVER THE CONTRACTING OFFICER SHALL DETERMINE THAT SUCH TERMINATION IS IN THE BEST INTERESTS OF THE GOVERNMENT.

IN THE PRESENT CASE IT WAS DETERMINED AFTER AWARD THAT THE GOVERNMENT COULD HAVE PROCURED AN ACCEPTABLE PRODUCT AT A MUCH LOWER PRICE THAN WAS BEING PAID UNDER CONTRACT AF 09/603/-50018. THEREFORE, THE REMAINING PORTION OF THE CONTRACT WAS CANCELLED BY THE DEPARTMENT OF THE AIR FORCE FOR THE CONVENIENCE OF THE GOVERNMENT, AND IT APPEARS THAT SUCH ACTION WILL RESULT IN SUBSTANTIAL SAVINGS TO THE GOVERNMENT. AS IT IS NOT APPARENT FROM THE RECORD THAT THE ADMINISTRATIVE ACTION WAS CAPRICIOUS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY NOR DO WE PERCEIVE ANY BASIS UPON WHICH WE COULD OBJECT TO CANCELLATION FOR THE CONVENIENCE OF THE GOVERNMENT WHEN A LOWER PRICE IS OBTAINABLE FOR A USABLE PRODUCT. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.