B-150804, OCT. 9, 1963

B-150804, OCT. 9, 1963

TO PALMER ASPHALT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1963, REGARDING OUR DECISION OF MARCH 19, 1963, B-150804, IN WHICH YOUR FIRM WAS ADVISED THAT FOR THE REASONS SET FORTH THEREIN, OUR OFFICE FOUND NO LEGAL BASIS UPON WHICH TO OBJECT TO THE ACTION OF THE MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA, IN CANCELING INVITATION NO. 62204 0559-63/GS-3), WHICH OVERSTATED THE AGENCY'S NEEDS AND TO THE AWARDING OF A CONTRACT TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNDER INVITATION NO. 62204-0733- 63/GS-3), THE READVERTISED INVITATION. BY DECISION OF JUNE 10, 1963, WE AFFIRMED OUR DECISION OF MARCH 19, 1963.

IN YOUR LETTER OF SEPTEMBER 10, 1963, YOU REFER TO YOUR PREVIOUS REQUEST OF JUNE 18, 1963, THAT OUR OFFICE DIRECT THE MARINE CORPS SUPPLY CENTER AT BARSTOW, CALIFORNIA, TO NEGOTIATE ITS NEXT CONTRACT FOR SIMILAR SUPPLIES WITH YOUR FIRM WITHOUT COMPETITIVE BIDDING AND YOU STATE THAT THE MARINE CORPS SUPPLY CENTER HAS NOW ISSUED INVITATION NO. 62204-0096-64/GS-3) FOR WHICH BIDS ARE TO BE OPENED ON SEPTEMBER 26, 1963. YOU STATE THAT YOU ARE NOW REITERATING YOUR REQUEST OF JUNE 18, 1963, BECAUSE OF A STATEMENT MADE BY OUR OFFICE IN DECISION OF JUNE 10, 1963, TO THE EFFECT THAT HAD THE PROCUREMENT ACTIVITY PURSUANT TO CLAUSE 8 (C) OF THE TERMS AND CONDITIONS OF THE ORIGINAL INVITATION, NO. 62204-0559-63/GS-3), REDUCED THE QUANTITY OF ITEM 1 (A), YOUR FIRM SHOULD HAVE BEEN CONSIDERED THE LOW BIDDER ON THE REDUCED QUANTITY. WHILE IT IS TRUE THAT WE MADE THE FOREGOING STATEMENT WE ALSO, HOWEVER, STATED THAT OUR CONCLUSION AS TO THE PROPRIETY OF CANCELING INVITATION NO. 62204-0559-63/GS-3) RATHER THAN AWARDING REDUCED QUANTITIES UNDER SUCH INVITATION REMAINS UNCHANGED REGARDLESS OF WHICH COMPANY WOULD HAVE BEEN THE LOW BIDDER.

OUR OFFICE HAS NO AUTHORITY TO REQUIRE A PROCURING AGENCY TO NEGOTIATE A CONTRACT FOR SUPPLIES OR SERVICES WITH A PARTICULAR FIRM SOLELY FOR THE PURPOSE OF COMPENSATING IT FOR NOT RECEIVING AN AWARD UNDER A PRIOR INVITATION. SECTION 2304 (A), TITLE 10, U.S.C. PROVIDES THAT PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES SHALL BE MADE BY FORMAL ADVERTISING EXCEPT IN CERTAIN ENUMERATED INSTANCES. THE FACT THAT YOU FEEL THAT YOU WERE UNJUSTLY TREATED UNDER A PRIOR INVITATION IS, OF COURSE, NOT ONE OF THOSE EXCEPTIONS. FURTHERMORE, THE FUNCTION OF DETERMINING WHETHER A PARTICULAR PROCUREMENT IS COVERED BY ONE OF THE EXCEPTIONS IS PRIMARILY THAT OF THE INTERESTED GOVERNMENT CONTRACTING AGENCY.

IN VIEW OF THE FOREGOING, OUR OFFICE IS UNABLE TO COMPLY WITH YOUR REQUEST.