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VAN SICKLE: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 9. WE HAVE RECEIVED A REPORT IN THE MATTER FROM THE DEPARTMENT OF THE AIR FORCE WHICH INDICATES THAT THE TOPEKA AIR FORCE DEPOT. INITIATED A PRE-AWARD SURVEY OF YOUR CAPACITY AND CAPABILITY TO PERFORM THESE CONTRACTS WHICH DISCLOSED THAT YOU DID NOT HAVE ANY MACHINERY. EQUIPMENT OR FACILITIES AND THAT YOU WERE NOT ENGAGED IN OPERATING ANY PLANT. IN THE PLACE WHERE YOU WERE REQUIRED TO REPRESENT WHETHER YOU ARE A "REGULAR DEALER" OR "MANUFACTURER" OF THE SUPPLIES BID UPON. THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NEITHER A "REGULAR DEALER" NOR A "MANUFACTURER" AND THAT YOU THEREFORE WERE NOT A RESPONSIBLE BIDDER. HE DETERMINED THAT IT WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT TO AWARD THE SUBJECT CONTRACTS TO YOU AND HE AWARDED THEM TO THE NEXT RESPONSIBLE BIDDER.

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B-134873, FEB. 26, 1958

TO MR. L. J. VAN SICKLE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 9, 1958, PROTESTING THE REJECTION OF YOUR TWO LOW BIDS IN THE TOTAL AMOUNTS OF $850 AND $518.09 AND THE AWARD OF CONTRACTS FOR AIRCRAFT BOLTS TO TWO HIGHER BIDDERS, PURSUANT TO THE RESPECTIVE INVITATIONS FOR BIDS NOS. 14-604 58-284, DATED OCTOBER 24, 1957, AND 14-604-58-288, DATED OCTOBER 25, 1957, ISSUED BY TOPEKA AIR FORCE DEPOT.

WE HAVE RECEIVED A REPORT IN THE MATTER FROM THE DEPARTMENT OF THE AIR FORCE WHICH INDICATES THAT THE TOPEKA AIR FORCE DEPOT, AFTER THE BID OPENING, INITIATED A PRE-AWARD SURVEY OF YOUR CAPACITY AND CAPABILITY TO PERFORM THESE CONTRACTS WHICH DISCLOSED THAT YOU DID NOT HAVE ANY MACHINERY, EQUIPMENT OR FACILITIES AND THAT YOU WERE NOT ENGAGED IN OPERATING ANY PLANT, STORE, WAREHOUSE OR BUSINESS ESTABLISHMENT OF ANY KIND. ALSO, ON THE FACE OF BOTH OF YOUR BIDS, IN THE PLACE WHERE YOU WERE REQUIRED TO REPRESENT WHETHER YOU ARE A "REGULAR DEALER" OR "MANUFACTURER" OF THE SUPPLIES BID UPON, YOU CHECKED THE BOX BEFORE THE WORDS "REGULAR DEALER," BUT STRUCK OUT THE WORD "REGULAR.' THIS APPEARS TO BE AN ADMISSION BY YOU THAT YOU DID NOT CONSIDER YOURSELF QUALIFIED AS A "REGULAR DEALER.' ON THE BASIS OF THE RESULTS OF THE PRE-AWARD SURVEY, THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NEITHER A "REGULAR DEALER" NOR A "MANUFACTURER" AND THAT YOU THEREFORE WERE NOT A RESPONSIBLE BIDDER. ACCORDINGLY, HE DETERMINED THAT IT WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT TO AWARD THE SUBJECT CONTRACTS TO YOU AND HE AWARDED THEM TO THE NEXT RESPONSIBLE BIDDER.

AFTER THE CONTRACTS WERE AWARDED, ADDITIONAL INFORMATION FURNISHED TO THE CONTRACTING OFFICER INDICATED THAT A FINANCIAL STATEMENT DATED AUGUST 31, 1957, PREPARED BY YOU, DID NOT LIST ANY ASSETS FOR MACHINERY, TOOLS, FIXTURES OR INVENTORY; THAT BEGINNING WITH NOVEMBER 24, 1957, YOU RENTED OFFICE SPACE, MEASURING APPROXIMATELY 12 FEET BY 12 FEET, AT YOUR PRESENT ADDRESS, ON A MONTH-TO-MONTH RENTAL BASIS; AND THAT IN CONNECTION WITH A CONTRACT, AF34 (601) 4167, AWARDED TO YOU BY THE DALLAS PROCUREMENT DISTRICT, YOU EMPLOYED ONLY ONE PART TIME EMPLOYEE AND, IN SOME INSTANCES, YOU COULD NOT BE LOCATED WHEN PROBLEMS AROSE IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT.

UNDER 10 U.S.C. 2305 (B) CONTRACT AWARDS ARE TO BE MADE "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' SEE ALSO ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 2- 406. A ,RESPONSIBLE BIDDER" IS ONE WHO SATISFIES ALL THE REQUIREMENTS OF ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 1 307, WHICH IS QUOTED HERE, INSOFAR AS IT IS PERTINENT:

"/A) IS A MANUFACTURER, CONSTRUCTION CONTRACTOR, OR REGULAR DEALER, IF THE CONTRACT OR ORDER CALLS FOR SUPPLIES (SEE ASPR 1-201.9);

"/C) HAS THE NECESSARY EXPERIENCE, ORGANIZATION, AND TECHNICAL QUALIFICATIONS, AND HAS OR CAN ACQUIRE THE NECESSARY FACILITIES (INCLUDING PROBABLE SUBCONTRACTOR ARRANGEMENTS) TO PERFORM THE PROPOSED CONTRACT; * *

ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 1-201.9 PROVIDES:

"* * * A "REGULAR DEALER" SHALL BE DEEMED TO BE * * *

"/1) A PERSON OR FIRM WHO OWNS, OPERATES, OR MAINTAINS A STORE, WAREHOUSE, OR OTHER ESTABLISHMENT IN WHICH THE MATERIALS, SUPPLIES, ARTICLES OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THE SPECIFICATIONS AND REQUIRED UNDER THE CONTRACT ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS.'

IT THUS APPEARS THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER WAS IN COMPLIANCE WITH THE REQUIREMENTS OF THE CITED PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. NOT ONLY WERE YOU NOT A REGULAR DEALER, BUT ALSO YOU APPARENTLY LACKED THE NECESSARY ORGANIZATION. ON THE BASIS OF THOSE FACTS AND THE APPLICATION OF THE REGULATIONS THERETO, IT APPEARS THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN DECIDING THAT YOU WERE NOT A RESPONSIBLE BIDDER.

IN REGARD TO YOUR CLAIM FOR LOSS OF ANTICIPATED PROFITS, THE COURT OF CLAIMS HAS HELD THAT WHERE, AS HERE, A BID IS REJECTED, THE UNSUCCESSFUL BIDDER CANNOT RECOVER THE PROFIT HE WOULD HAVE MADE OUT OF THE CONTRACT, BECAUSE HE HAD NO CONTRACT. HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F.SUPP. 409, 135 C.CLS. 63.

ACCORDINGLY, WE PERCEIVE NO PROPER BASIS FOR TAKING ANY FURTHER ACTION IN CONNECTION WITH THE REJECTION OF YOUR TWO BIDS.

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