B-156865, JAN. 12, 1966
Highlights
HAVE BEEN THOROUGHLY REVIEWED. CONCLUDED THAT THE EVIDENCE ON RECORD WAS INSUFFICIENT TO ESTABLISH THAT YOUR FIRM POSSESSED THE CAPABILITIES AND EXPERIENCE NECESSARY FOR SATISFACTORY PERFORMANCE OF THE WORK. AS WAS OBSERVED IN OUR PRIOR DECISION. THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S QUALIFICATIONS IS PRIMARILY A FUNCTION OF THE CONTRACTING AGENCY. THERE IS NO BASIS FOR LEGAL OBJECTION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. 38 COMP. " THE RECORD ESTABLISHES THAT REQUESTS FOR PROPOSALS WERE DISPATCHED TO BOTH MEDICAL LITERATURE. WE CANNOT SUBSCRIBE TO YOUR CONTENTION THAT AUERBACH CORPORATION WAS INELIGIBLE FOR AWARD IN RESPECT OF SIZE. WE ARE ADVISED THAT ITS SUCCESSFUL OFFERTHIS YEAR.
B-156865, JAN. 12, 1966
TO MRS. ELAINE EARL:
YOUR LETTERS DATED SEPTEMBER 4, 1965, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 2, 1965, WHICH DENIED YOUR PROTEST AGAINST THE FAILURE OF THE NATIONAL INSTITUTES OF HEALTH TO SOLICIT A PROPOSAL FROM YOUR ORGANIZATION FOR FURNISHING CANCER CHEMOTHERAPY ABSTRACTING SERVICES, HAVE BEEN THOROUGHLY REVIEWED.
A SCIENTIFIC EVALUATION PANEL OF THE NATIONAL CANCER INSTITUTE, AFTER A CAREFUL STUDY OF THE QUALIFICATIONS AND EXPERIENCE OF YOUR COMPANY, CONCLUDED THAT THE EVIDENCE ON RECORD WAS INSUFFICIENT TO ESTABLISH THAT YOUR FIRM POSSESSED THE CAPABILITIES AND EXPERIENCE NECESSARY FOR SATISFACTORY PERFORMANCE OF THE WORK. AS WAS OBSERVED IN OUR PRIOR DECISION, THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S QUALIFICATIONS IS PRIMARILY A FUNCTION OF THE CONTRACTING AGENCY, IN THIS INSTANCE THE NATIONAL CANCER INSTITUTE, AND, ABSENT A SHOWING OF BAD FAITH OR ARBITRARINESS, THERE IS NO BASIS FOR LEGAL OBJECTION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. 38 COMP. GEN. 131, 133; 37 ID. 430.
HAVING EXAMINED THE RECORD BEFORE US, WE FIND NO TANGIBLE EVIDENCE OF UNDUE INFLUENCE EXERTED BY OR ON BEHALF OF THE WINNING OFFEROR, AUERBACH CORPORATION. CONTRARY TO ASSERTIONS IN YOUR LETTERS THAT ONLY ONE COMPANY "OFFERED A BID," THE RECORD ESTABLISHES THAT REQUESTS FOR PROPOSALS WERE DISPATCHED TO BOTH MEDICAL LITERATURE, INCORPORATED, AND TO AUERBACH CORPORATION, EACH OF WHICH SUBMITTED A PROPOSAL. FURTHERMORE, SINCE THE PROCUREMENT IN QUESTION DID NOT CONSTITUTE A SMALL BUSINESS SET-ASIDE, WE CANNOT SUBSCRIBE TO YOUR CONTENTION THAT AUERBACH CORPORATION WAS INELIGIBLE FOR AWARD IN RESPECT OF SIZE.
ALTHOUGH AUERBACH CORPORATION QUOTED A PRICE OF $200,000 ON THE CANCELLED COMPETITION IN 1964, WE ARE ADVISED THAT ITS SUCCESSFUL OFFERTHIS YEAR, APPROXIMATELY $71,000, WAS THE LOWEST RECEIVED, AND INDEED THAT THE LAST ESTIMATE OF COSTS TENDERED TO THE PROCURING AGENCY BY YOUR COMPANY WAS A FIGURE SUBSTANTIALLY HIGHER THAN THE PRESENT CONTRACT PRICE.
FOR THE REASONS OUTLINED ABOVE, WE PERCEIVE NO BASIS FOR UPSETTING THE AWARD TO AUERBACH CORPORATION AND OUR DECISION OF SEPTEMBER 2ND IS THEREFORE AFFIRMED.
WE WOULD LIKE TO TAKE THIS OPPORTUNITY TO CORRECT AN ERROR APPEARING IN THE AFOREMENTIONED DECISION. THE FIRST TWO REFERENCES TO "ACADEMIC MEDICAL LITERATURE, INCORPORATED" IN THE BODY OF THE LETTER SHOULD BE CORRECTED TO READ "MEDICAL LITERATURE, INCORPORATED.' PLEASE EXCUSE THE INACCURACY OCCASIONED BY THE SIMILARITY OF CORPORATE TITLES.