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SECRETARY: FURTHER REFERENCE IS MADE TO THE REQUEST OF ELECTROSPACE CORPORATION THAT WE RECONSIDER OUR DECISIONS OF NOVEMBER 7. WE HELD THAT NO AWARD SHOULD BE MADE AS THE INVITATION WAS DEFECTIVE BECAUSE THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305 HAD NOT BEEN OBTAINED. IT WAS THE ARMY'S INTENTION TO AWARD TWO IDENTICAL CONTRACTS TO DIFFERENT BIDDERS WHEN THE SUBJECT INVITATION WAS ISSUED. " IF THE DIFFERENCE BETWEEN THE TWO LOWEST BIDS IS THE . THE ACTING DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION ADVISES THAT THERE IS STILL A NEED FOR ANOTHER AWARD IN THE SAME QUANTITY AND ELECTROSPACE HAS BEEN FOUND RESPONSIBLE FOR THE PRODUCTION AND DELIVERY OF THE REQUIRED AMOUNT. WE HAVE NO OBJECTION TO THE PROPOSED AWARD TO ELECTROSPACE.

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B-164649, APR. 21, 1969

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO THE REQUEST OF ELECTROSPACE CORPORATION THAT WE RECONSIDER OUR DECISIONS OF NOVEMBER 7, 1968, AND FEBRUARY 19, 1969, WHICH INVOLVE THE PROCUREMENT OF AN/TVS-2 CREW SERVED WEAPON NIGHT VISION SIGHTS AND ANCILLARY EQUIPMENT PURSUANT TO INVITATION FOR BIDS NO. DAAB07- 68-B-0485, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

IN OUR DECISION OF NOVEMBER 7, 1968, WE HELD THAT NO AWARD SHOULD BE MADE AS THE INVITATION WAS DEFECTIVE BECAUSE THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305 HAD NOT BEEN OBTAINED. ON FEBRUARY 19, 1969, UPON REVIEW OF THE MATTER AT THE REQUEST OF ELECTRO OPTICAL SYSTEMS, INCORPORATED, WE SAID THAT FOR REASONS STATED THEREIN WE WOULD NOT OBJECT TO THE PROPOSAL OF THE UNITED STATES ARMY MATERIEL COMMAND TO REINSTATE THE EOS BID AND AWARD A CONTRACT TO THAT FIRM FOR THE MULTI-YEAR QUANTITY OF 4,331 UNITS. WE MADE NO DETERMINATION AS TO A SECOND AWARD. HOWEVER, AS NOTED IN OUR DECISION OF NOVEMBER 7, 1968, IT WAS THE ARMY'S INTENTION TO AWARD TWO IDENTICAL CONTRACTS TO DIFFERENT BIDDERS WHEN THE SUBJECT INVITATION WAS ISSUED.

NOW ELECTROSPACE, THROUGH ITS ATTORNEYS, ASKS THAT WE FOLLOW THE REASONING OF OUR DECISION OF FEBRUARY 19, 1969, TO PERMIT AN AWARD TO BE MADE TO IT AS ORIGINALLY CONTEMPLATED BY THE ARMY. IN ADDITION, THE ATTORNEYS STATE THAT ELECTROSPACE HAS OFFERED TO REDUCE ITS PRICE TO THE "LEVEL OF, OR TO WITHIN THE AREA OF, THE LOW BIDDER-S," IF THE DIFFERENCE BETWEEN THE TWO LOWEST BIDS IS THE ,ONLY STUMBLING BLOCK" TO AN AWARD.

IN HIS REPORT DATED APRIL 7, 1969, THE ACTING DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION ADVISES THAT THERE IS STILL A NEED FOR ANOTHER AWARD IN THE SAME QUANTITY AND ELECTROSPACE HAS BEEN FOUND RESPONSIBLE FOR THE PRODUCTION AND DELIVERY OF THE REQUIRED AMOUNT. THEREFORE, HE RECOMMENDS THAT ELECTROSPACE BE PERMITTED TO REINSTATE ITS BID AND THE ARMY BE AUTHORIZED TO MAKE AN AWARD. IN ADDITION, HE REQUESTS OUR ADVICE AS TO WHAT ACTION MAY BE TAKEN WITH RESPECT TO ELECTROSPACE'S OFFER OF A REDUCTION IN PRICE.

FOR THE REASONS STATED IN OUR DECISION OF FEBRUARY 19, 1969, WE HAVE NO OBJECTION TO THE PROPOSED AWARD TO ELECTROSPACE. AS TO ELECTROSPACE'S OFFER TO REDUCE ITS PRICE, IT IS THE POSITION OF OUR OFFICE, BASED UPON THE COURT'S HOLDING IN ALECK LEITMAN V UNITED STATES, 104 CT. CLS. 324, 341, THAT THE GOVERNMENT MAY ACCEPT AN UNSOLICITED VOLUNTARY REDUCTION IN THE PRICE OF AN OTHERWISE LOW BID. 45 COMP. GEN. 228, 232; B-163193, FEBRUARY 6, 1968. SINCE ONE OF THE TWO AWARDS CONTEMPLATED UNDER THE INVITATION HAS BEEN MADE, AND ELECTROSPACE IS THE REMAINING LOW RESPONSIVE BIDDER, AND THEREFORE NO OTHER BIDDER WOULD BE DISPLACED BY A REDUCTION IN ITS BID PRICE, ACCEPTANCE BY THE CONTRACTING OFFICER OF ELECTROSPACE'S BID, EITHER AS SUBMITTED OR AS VOLUNTARILY REDUCED, WOULD BE LEGALLY PROPER. B 163193, SUPRA. HOWEVER, WE BELIEVE IT SHOULD FIRST BE DETERMINED FROM ELECTROSPACE WHETHER THE STATEMENT OF ITS ATTORNEYS CONCERNING REDUCTION OF ITS BID PRICE WAS INTENDED TO BE A DEFINITE OFFER.

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