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PRECIS-UNAVAILABLE LE JOHN MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 31. THERE WERE RECEIVED EIGHT BIDS. WERE REJECTED AS NOT EQUALLING THE STANDARD SPECIFIED. ATTENTION IS DIRECTED TO THE NOTICE CONTAINED IN THE ORIGINAL INVITATION. CONTINUATION SHEET PAGE 3 - THE TERMS AND CONDITIONS OF WHICH WERE INCORPORATED BY REFERENCE IN THE TELEGRAM OF FEBRUARY 18 - THAT "AWARDS PURSUANT TO THIS INVITATION WILL BE NEGOTIATED UNDER SECTION 302(C)(1). ACCORDINGLY NO PUBLIC BID OPENINGS WILL BE HELD.". THE SECTION REFERRED TO (63 STAT. 393) IS AS FOLLOWS: "(C) ALL PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES SHALL BE MADE BY ADVERTISING. BY THESE PROVISIONS THERE IS ELIMINATED THE USUAL REQUIREMENTS OF AWARD TO THE LOWEST RESPONSIBLE BIDDER AFTER PUBLIC ADVERTISING.

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B-116479, OCT 21, 1953

PRECIS-UNAVAILABLE

LE JOHN MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1953, PROTESTING THE AWARD BY GENERAL SERVICES ADMINISTRATION OF A CONTRACT FOR HASSOCK FANS ON INVITATION NO. NY-3H-41058-B TO EMERSON ELECTRIC COMPANY.

A REPORT HAS BEEN RECEIVED FROM THE ADMINISTRATIVE OFFICE, WHICH DISCLOSES THAT ON THE AMENDED TELEGRAPHIC REQUEST OF FEBRUARY 18, 1953, FOR BIDS, THERE WERE RECEIVED EIGHT BIDS, AT PRICES RANGING FROM $16.00 TO $27.90. THE ITEMS OFFERED UNDER THREE BIDS, INCLUDING THE ONE SUBMITTED BY YOU, WERE REJECTED AS NOT EQUALLING THE STANDARD SPECIFIED, AND A CONTRACT ENTERED INTO WITH THE LOWEST REMAINING BIDDER, THE EMERSON ELECTRIC COMPANY, AT ITS QUOTED PRICES OF $21.50 TO $22.00 FOR THE VARIOUS DESTINATIONS LISTED, LESS TWO PERCENT DISCOUNT FOR PAYMENT IN THIRTY DAYS.

ATTENTION IS DIRECTED TO THE NOTICE CONTAINED IN THE ORIGINAL INVITATION, CONTINUATION SHEET PAGE 3 - THE TERMS AND CONDITIONS OF WHICH WERE INCORPORATED BY REFERENCE IN THE TELEGRAM OF FEBRUARY 18 - THAT "AWARDS PURSUANT TO THIS INVITATION WILL BE NEGOTIATED UNDER SECTION 302(C)(1), PUBLIC LAW 152, 81ST CONGRESS, AS AMENDED, AND ACCORDINGLY NO PUBLIC BID OPENINGS WILL BE HELD." THE SECTION REFERRED TO (63 STAT. 393) IS AS FOLLOWS:

"(C) ALL PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES SHALL BE MADE BY ADVERTISING, AS PROVIDED IN SECTION 303, EXCEPT THAT SUCH PURCHASES AND CONTRACTS MAY BE NEGOTIATED BY THE AGENCY HEAD WITHOUT ADVERTISING IF -

"(1) DETERMINED TO BE NECESSARY IN THE PUBLIC INTEREST DURING THE PERIOD OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OR BY THE CONGRESS.

SECTION 307(A) OF THE SAME ACT, PROVIDES THAT "THE DETERMINATIONS AND DECISIONS PROVIDED IN THIS TITLE TO BE MADE BY THE ADMINISTRATOR OR OTHER AGENCY HEAD MAY BE MADE WITH RESPECT TO INDIVIDUAL PURCHASES AND CONTRACTS OR WITH RESPECT TO CLASSES OF PURCHASES OR CONTRACTS, AND SHALL BE FINAL."

BY THESE PROVISIONS THERE IS ELIMINATED THE USUAL REQUIREMENTS OF AWARD TO THE LOWEST RESPONSIBLE BIDDER AFTER PUBLIC ADVERTISING, AND INTRODUCED A LARGE MEASURE OF ADMINISTRATIVE DISCRETION IN DETERMINING WHAT AWARD WOULD BEST SERVE THE INTERESTS OF THE GOVERNMENT.

IN THIS INSTANCE, IT IS THE POSITION OF THE ADMINISTRATIVE OFFICE THAT THE APPLICATION OF THE EVALUATION FORMULA CONTAINED IN THE INVITATION WAS NOT FOR CONSIDERATION, BY REASON OF THE FACT THAT THE SPECIFICATION MADE NO PROVISION FOR DETERMINING THE EFFICIENCY OF THE FAN; THAT THE DEGREE OF IMPORTANCE OF THE DIFFERENCE OF 150 CUBIC FEET PER MINUTE IN THE AIR DELIVERY OF YOUR FAN AND THAT OF THE EMERSON COMPANY IS NOT OF PRIME CONSIDERATION, BUT RATHER THE REQUIREMENT "TO EQUAL," NOT "TO NEARLY EQUAL," THE TYPE SPECIFIED IS OF PRIME CONSIDERATION; AND THAT IT WAS DETERMINED BY PRE-AWARD INSPECTION THAT THE EMERSON FAN WAS SUPERIOR TO YOURS IN THE FOLLOWING RESPECTS -

1 - THE MOTOR BASE IS A RIGID ONE PIECE CONSTRUCTION, RUBBER MOUNTED AGAINST VIBRATION. THE BASE HOLDING THE MOTOR IS SO CONSTRUCTED AS TO GIVE ADDED STRENGTH AND RIGIDITY TO THE FAN HOUSING.

2 - THIS FAN HAS A THREE WAY SWITCH, ENTIRELY ENCLOSED AGAINST DUST AND DIRT. THE SWITCH IS SO CONSTRUCTED AS TO MAKE A DEFINITE FIRM CONTACT AT EACH OF THE THREE PHASES.

3 - THERE IS IN ADDITION TO THE SWITCH A TRANSFORMER.

4 - THE BOTTOM OF THE HOUSING OF THIS FAN HAS A DIE FORMED SEMI ROUND FLANGE SO ATTACHED TO HOUSING AS TO GIVE ADDED STRENGTH AND FINISH.

5 - THE GENERAL APPEARANCE OF THIS FAN IS MORE ATTRACTIVE.

6 - THE GENERAL CONSTRUCTION AND WORKMANSHIP IS SUPERIOR TO THE LEJOHN.

7 - THIS FAN HAS A 3/8 MOTOR SHAFT AS COMPARED TO THE 5/16 OF THE LEJOHN.

IT IS FURTHER STATED THAT ORIGIN INSPECTIONS ON THE UNITS DELIVERED UNDER THE CONTRACT SHOWED A MINIMUM AIR DELIVERY OF 3051 CFM AND A MAXIMUM OF 3342.

UNDER THE CIRCUMSTANCES IT DOES NOT APPEAR THAT ANY ACTION BY THIS OFFICE WOULD BE JUSTIFIED.

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