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TO INTERNATIONAL COMMODITIES EXPORT CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13. THE GENERAL SERVICES ADMINISTRATION STATED THAT THE SPECIFIED 0.5 PERCENT FACTOR WAS AN ERROR AND THAT THE OFFERORS GENERALLY UNDERSTOOD THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE IN THE REQUEST FOR PROPOSALS. ALL OF THE 14 OFFERS WERE THEREFORE TREATED AS RESPONSIVE. THE OFFERS WERE EVALUATED ON THE BASIS OF THE LOWEST LANDED COST TO DESTINATION. THE CONTRACT AWARDED TO THE INTERNATIONAL MINERALS AND CHEMICAL CORPORATION WAS BASED UPON THE FURNISHING OF A FERTILIZER HAVING A NITROGEN. SETS FORTH THAT THE CONTRACT INVOLVED WAS NEGOTIATED PURSUANT TO THE PROVISIONS OF 41 U.S.C. 252 (C) (15).

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B-159594, OCT. 5, 1966

TO INTERNATIONAL COMMODITIES EXPORT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13, 1966, EXPRESSING GENERAL DISAGREEMENT WITH OUR DECISION OF SEPTEMBER 9, 1966, WHICH DENIED THE PROTEST OF YOUR COMPANY AGAINST AN AWARD OF A CONTRACT ON JUNE 24, 1966, TO THE INTERNATIONAL MINERALS AND CHEMICAL CORPORATION, SKOKIE, ILLINOIS, PURSUANT TO REQUEST FOR PROPOSALS NO. FPNGC-R-57272-N-6-2-66, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, PROCUREMENT OPERATIONS DIVISION. THE REQUEST FOR PROPOSALS CONCERNED A PROPOSED PROCUREMENT OF SPECIFIED QUANTITIES OF FERTILIZER WITH A NITROGEN, PHOSPHORUS AND POTASSIUM CONTENT OF 20 20-15, SUBJECT TO A VARIABLE FACTOR OF PLUS OR MINUS 0.5 PERCENT WITH RESPECT TO EACH OF THESE INGREDIENTS.

SEVEN OF THE 14 OFFERS RECEIVED QUOTED ON A 20-20-15 ANALYSIS OF THE FERTILIZER PROPOSED FOR DELIVERY. THE REMAINING SEVEN OFFERS QUOTED ON FERTILIZER HAVING PROPORTIONS OF NITROGEN, PHOSPHORUS AND POTASSIUM EXCEEDING THE ALLOWABLE VARIATION OF 1.5 PERCENT. THE GENERAL SERVICES ADMINISTRATION STATED THAT THE SPECIFIED 0.5 PERCENT FACTOR WAS AN ERROR AND THAT THE OFFERORS GENERALLY UNDERSTOOD THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE IN THE REQUEST FOR PROPOSALS. ALL OF THE 14 OFFERS WERE THEREFORE TREATED AS RESPONSIVE. THE OFFERS WERE EVALUATED ON THE BASIS OF THE LOWEST LANDED COST TO DESTINATION, ON THE BASIS OF THE TOTAL PLANT FOOD NUTRIENT CONTENT. THE CONTRACT AWARDED TO THE INTERNATIONAL MINERALS AND CHEMICAL CORPORATION WAS BASED UPON THE FURNISHING OF A FERTILIZER HAVING A NITROGEN, PHOSPHORUS AND POTASSIUM CONTENT OF 21-21-15.75. HOWEVER, AFTER RECEIPT OF A PROTEST FROM YOUR COMPANY, THE GENERAL SERVICES ADMINISTRATION ATTEMPTED TO OBTAIN A NO-COST TERMINATION OF THE CONTRACT. THE CONTRACTOR REFUSED TO AGREE TO A NO-COST TERMINATION AND ALLEGED THAT IT HAD PLACE FIRM ORDERS WITH ITS SUPPLIERS AND COMMENCED PRODUCTION.

THE GENERAL SERVICES ADMINISTRATION CONSIDERED THAT THE GOVERNMENT COULD NOT CANCEL THE CONTRACT WITHOUT LIABILITY AND RECOMMENDED THAT THE PROTEST TO OUR OFFICE IN THE MATTER BE DENIED.

THE DECISION OF SEPTEMBER 9, 1966, SETS FORTH THAT THE CONTRACT INVOLVED WAS NEGOTIATED PURSUANT TO THE PROVISIONS OF 41 U.S.C. 252 (C) (15), AND 22 U.S.C. 2393, AS IMPLEMENTED BY EXECUTIVE ORDER 10784, OCTOBER 1, 1958, AS AMENDED. THE DECISION ALSO REFERS TO THE GENERAL RULE THAT IN NEGOTIATED PROCUREMENTS AUTHORIZED BY STATUTE THE RULES OF FORMALLY ADVERTISED COMPETITIVE BIDDING ARE NOT APPLICABLE AND THE NEGOTIATING AUTHORITY MAY LEGALLY TAKE INTO CONSIDERATION ALL FACTORS DEEMED ESSENTIAL TO THE ACCOMPLISHMENT OF THE PARTICULAR PROCUREMENT. WE EXPRESSED THE VIEW THAT THE REQUEST FOR PROPOSALS IN THIS CASE SHOULD HAVE MORE CLEARLY DEFINED THE TYPE OF FERTILIZER WHICH WOULD BE ACCEPTABLE, BUT CONCLUDED THAT NO BASIS EXISTED FOR A FINDING THAT THE CONTRACT AS AWARDED IS INVALID. YOU WERE ADVISED THAT, IN OUR OPINION, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DISTURB THE AWARD.

YOU REQUEST INFORMATION AS TO WHETHER OUR OFFICE OR THE GENERAL SERVICES ADMINISTRATION DETERMINED IF THE CONTRACTOR HAD, IN FACT, PLACED FIRM ORDERS WITH ITS SUPPLIERS AND COMMENCED PRODUCTION AS OF THE TIME THAT YOUR PROTEST WAS UNDER CONSIDERATION BY THE GENERAL SERVICES ADMINISTRATION. BEFORE OUR DECISION WAS RENDERED, WE WERE ADVISED BY THE GENERAL SERVICES ADMINISTRATION THAT THE CONTRACTOR HAD STATED THAT IT WOULD HAVE ONLY ONE PRODUCTION RUN AND FIRM ORDERS HAD BEEN PLACED FOR DELIVERY OF ALL REQUIRED BAGS. IT WAS NOT BELIEVED NECESSARY TO VERIFY SUCH STATEMENT IN VIEW OF THE CONCLUSION THAT A VALID AND BINDING CONTRACT HAD BEEN ENTERED INTO.

WE DO NOT DISAGREE WITH YOUR SUGGESTION THAT THE CONSIDERATION OF THE ACCEPTED PROPOSAL MAY HAVE BEEN UNFAIR TO AT LEAST 50 PERCENT OF THE OFFERORS AND THAT THEY HARDLY REPRESENT A MINORITY IN THE CASE. HOWEVER, WE FIND NO BASIS FOR CONCLUDING THAT THE CONTRACT WAS NOT AWARDED IN GOOD FAITH AND REMAIN OF THE OPINION, IN THE PARTICULAR CIRCUMSTANCES, THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DISTURB THE AWARD. THE DECISION DENYING YOUR PROTEST IS THEREFORE AFFIRMED.

WITH RESPECT TO THE QUESTION RAISED IN THE LAST PARAGRAPH OF YOUR LETTER, IT DOES NOT APPEAR THAT ANY ADDITIONAL ADMINISTRATIVE PROCEDURES ARE AVAILABLE TO YOUR COMPANY FOR FURTHER PROTEST AGAINST THE CONTRACT AWARD IN AN ATTEMPT TO REQUIRE CANCELLATION OF THE CONTRACT SO FAR AS CONCERNS THE TONNAGES REMAINING DUE FOR DELIVERY AT THIS TIME. SO FAR AS OTHER REMEDIES ARE CONCERNED, YOUR ATTENTION IS INVITED TO PERKINS V. LUKENS STEEL CO., 310 U.S. 113 AND THE FOOTNOTE CASES CITED AT PAGES 126-127 THEREOF, WHICH HOLD GENERALLY THAT FEDERAL PROCUREMENT STATUTES CONFER NO LITIGABLE RIGHTS ON BIDDERS.

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