B-150608, FEB. 8, 1963

B-150608, FEB. 8, 1963

TO MR. JERRY L. DUKE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 5, 1963, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 01-601-62 881, ISSUED BY THE DEPARTMENT OF THE AIR FORCE UNDER DATE OF MARCH 14, 1962. IT WAS STATED IN YOUR LETTER THAT YOU HAVE A VALID BASIS FOR YOUR PROTEST AND YOU REQUESTED TO BE ADVISED AS TO WHETHER YOU MAY BE GIVEN A HEARING AT A SPECIFIC TIME AND PLACE IN ORDER TO PRESENT YOUR VIEWS. YOU DID NOT, HOWEVER, SET FORTH ANY FACTS IN SUPPORT OF YOUR PROTEST.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THE INDICATED INVITATION SOLICITED BIDS FOR A QUANTITY OF SIX DITCHING MACHINES WHEEL MOUNTED, GASOLINE ENGINE DRIVEN, ETC., THE EQUIPMENT TO COMPLY WITH "MODEL ARPS TRENCH DEVIL, MODEL L-12 OR EQUAL.' BUS TRENCHER SALES--- APPARENTLY OPERATED BY YOU--- OFFERED A BUS TRENCHER MODEL 468R ON AN "OR EQUAL" BASIS AT A TOTAL PRICE OF $9,600, LESS A DISCOUNT OF TEN PERCENT FOR PAYMENT WITHIN TEN DAYS. THE BID OF BUS TRENCHER SALES WAS CONSIDERED AND REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE FOR FAILURE OF THE ITEM OFFERED TO MEET IN ALL MATERIAL RESPECTS THE CHARACTERISTICS OF THE BRAND NAME ITEM SPECIFIED IN THE INVITATION. THEREAFTER, AN AWARD WAS MADE TO THE SECOND LOW BIDDER--- EQUIPMENT SERVICE COMPANY, INC., MOBILE, ALABAMA--- AT A TOTAL PRICE OF $11,700, LESS TEN PERCENT FOR PAYMENT WITHIN TEN DAYS, THAT ACTION HAVING BEEN BASED UPON A DETERMINATION BY THE CONTRACTING OFFICER THAT THE DAVIS T66 TRENCHER OFFERED BY THE EQUIPMENT SERVICE COMPANY WAS EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME ITEM SPECIFIED IN THE INVITATION. WAS REPORTED FURTHER THAT THE EQUIPMENT CALLED FOR UNDER THE CONTRACT WAS DELIVERED TO THE AIR FORCE ON OR ABOUT MAY 24, 1962.

IN VIEW OF THE FACT THAT PERFORMANCE UNDER THE CONTRACT HAS LONG SINCE BEEN COMPLETED THERE APPEARS TO BE NO CORRECTIVE ACTION WHICH COULD NOW BE TAKEN BY OUR OFFICE WITH RESPECT TO THE AWARD MADE. WHILE YOUR LETTER REFERS TO SOME PRIOR PROTEST OF THE AWARD, WE HAVE NO RECORD OF ANY PROTEST HAVING BEEN RECEIVED HERE, AND WE DO NOT ORDINARILY REVIEW ACTUAL OR PROPOSED CONTRACT AWARDS EXCEPT WHERE PROTEST IS RECEIVED HERE EITHER BEFORE AWARD OR WITHIN A REASONABLE TIME THEREAFTER.

WITH RESPECT TO YOUR REQUEST FOR A HEARING, ACTION BY OUR OFFICE IN SUCH MATTERS IS BASED ENTIRELY UPON THE WRITTEN RECORD, WHICH MAY INCLUDE ANY PERTINENT STATEMENTS AND SUPPORTING MATERIAL FURNISHED BY THE PROTESTING PARTY. NO FORMAL HEARINGS ARE CONDUCTED, BUT OPPORTUNITY MAY BE AFFORDED, UPON REQUEST, FOR PERSONAL DISCUSSION OF MATTERS PROPERLY BEFORE US.

IN THE CIRCUMSTANCES THERE WOULD SEEM TO BE NO USEFUL PURPOSES TO BE SERVED BY DISCUSSION OF THE AWARD IN QUESTION. IN THE EVENT YOU SHOULD HAVE OCCASION TO OBJECT TO FURTHER PROCUREMENTS OF THE SAME OR SIMILAR ARTICLES, YOUR PROTEST SHOULD BE DIRECTED TO THIS OFFICE AS PROMPTLY AS PRACTICABLE.