B-154519, AUG. 18, 1964

B-154519, AUG. 18, 1964

TO THE SECRETARY OF DEFENSE:

OUR OFFICE RECENTLY RECEIVED A REQUEST FROM AMINO KINZOKU SANGYO COMPANY, LTD., OF TOKYO, JAPAN, FOR RESCISSION OF A CONTRACT FOR THE SALE OF SURPLUS ALUMINUM INGOTS LET BY THE UNITED STATES ARMY, JAPAN. THE CONTRACT IS DA/S/92-557-FEC-34444. THE PROPERTY HAD BEEN INADVERTENTLY MISDESCRIBED AS 99 PERCENT PURE ALUMINUM AND TESTS CONDUCTED AFTER OPENING BUT BEFORE AWARD SHOWED THE ALUMINUM CONTENT TO BE A LESSER PERCENTAGE AND REVEALED THE PRESENCE OF LEAD ALLEGEDLY SUFFICIENT TO RENDER THE METAL UNFIT FOR ROLLING OR CASTING.

THE BIDDER'S REQUEST FOR A SAMPLE OF THE MATERIAL TO BE USED IN CHEMICAL ANALYSIS MADE PRIOR TO SUBMISSION OF ITS BID WAS REJECTED BY SALES PERSONNEL. WE ARE INFORMED THAT ONLY CHEMICAL ANALYSIS COULD HAVE YIELDED AN EXACT APPRAISAL OF THE INGOT PURITY.

WE BELIEVE THAT THERE ARE OCCASIONS WHEN FAIRNESS TO BIDDERS REQUIRES THAT THEY BE ALLOWED TO EXAMINE SURPLUS ITEMS OFFERED FOR SALE BY THE GOVERNMENT MORE COMPREHENSIVELY THAN CAN BE ACCOMPLISHED BY A MERE ON-SITE INSPECTION. IT IS HEREBY SUGGESTED, THEREFORE, THAT CONSIDERATION BE GIVEN TO ALLOWING BIDDERS UPON REQUEST TO REMOVE A SMALL SAMPLE OF THE MATERIALS BEING OFFERED FOR SALE FOR TESTING PURPOSES WHENEVER THIS PROCEDURE IS NECESSARY TO ENABLE THE ASCERTAINMENT OF PROPERTIES NOT DISCERNIBLE UPON VISUAL INSPECTION AND WHENEVER SUCH ACTION IS FEASIBLE UNDER THE CIRCUMSTANCES OF THE SALE WITHOUT PREJUDICE TO EITHER THE INTERESTS OF THE GOVERNMENT OR OF OTHER BIDDERS.

WE HAVE HAD TO ADVISE THE BIDDER THAT THE CONTRACT COULD NOT BE RESCINDED UNDER THE LAW AND REGULATIONS AS THEY NOW STAND. SINCE THERE IS AN ELEMENT OF UNFAIRNESS IN THIS RESULT, WE HOPE THAT PROCEDURES CAN BE MODIFIED TO PRECLUDE SUCH SITUATIONS FROM ARISING IN THE FUTURE.