B-186034, APR 27, 1976

B-186034, APR 27, 1976

PROTEST BASED UPON REFUSAL OF AGENCY TO EXTEND CLOSING DATE FOR RECEIPT OF PROPOSALS FILED IN GAO AFTER CLOSING DATE IS UNTIMELY UNDER SEC. 20.2(B)(1) OF BID PROTEST PROCEDURES AND THEREFORE NOT FOR CONSIDERATION.

UNITED TERMINALS INC.:

UNITED TERMINALS INC. (UNITED) PROTESTS THE REFUSAL OF HEADQUARTERS, UNITED STATES ARMY MILITARY TRAFFIC MANAGEMENT COMMAND, TO EXTEND THE FEBRUARY 27, 1976, CLOSING DATE FOR RECEIPT OF PROPOSALS. UNITED ALSO CONTENDS THAT ITS FIRM WAS AFFORDED 30 PERCENT LESS TIME TO SUBMIT ITS "BEST AND FINAL" OFFER THAN ITS COMPETITOR WHICH PREVENTED "PROPER EVALUATION OF COMPUTER PRINT OUT ON REDUCTION OF PRICES."

REQUEST FOR PROPOSALS (RFP) DAHC24-76-R-0003 FOR STEVEDORING SERVICES WAS ISSUED ON OCTOBER 24, 1975, AND OFFERS WERE OPENED ON DECEMBER 29, 1975. REVISED PROPOSALS WERE SUBMITTED ON FEBRUARY 2, 1976, AND "BEST AND FINAL OFFERS" WERE REQUIRED BY 12:00 NOON ON FEBRUARY 27, 1976. THE CONTRACTING OFFICER REPORTS THAT IN A TELEPHONE CONVERSATION HELD ON FEBRUARY 19, 1976, UNITED WAS ADVISED OF THE FEBRUARY 27, 1976, FINAL CUTOFF DATE AS WELL AS OF THE FACT THAT NEGOTIATIONS WOULD BE CONDUCTED WITH ITS FIRM ON FEBRUARY 24, 1976.

THE RECORD DISCLOSES THAT DURING THE FEBRUARY 24, 1976, NEGOTIATIONS WITH UNITED TERMINALS, MR. DAVID RICHMAN OF THE FIRM REQUESTED MORE TIME TO SUBMIT A REVISED PROPOSAL, STATING THAT HIS COMPETITOR, UNIVERSAL MARITIME, WITH WHOM NEGOTIATIONS WERE CONDUCTED ON FEBRUARY 23, 1976, HAD APPROXIMATELY 30 PERCENT MORE PREPARATION TIME TO PREPARE ITS REVISED PROPOSAL. HOWEVER, MR. RICHMAN ADVISED THAT HE COULD SUBMIT HIS FINAL PROPOSAL BY FEBRUARY 27, 1976, IF NECESSARY BUT THAT HE WOULD LIKE SOME ADDITIONAL TIME. MR. RICHMAN'S REQUEST FOR ADDITIONAL TIME WAS DENIED AND IT WAS AGREED THAT UNITED WOULD SUBMIT ITS BEST AND FINAL OFFER BY THE SCHEDULED CLOSING TIME. THE RECORD DISCLOSES THAT UNITED DID, IN FACT, SUBMIT A REVISED PROPOSAL ON FEBRUARY 27, 1976, WITHOUT FILING ANY OBJECTION TO THE CLOSING DATE.

ON MARCH 4, 1976, UNITED FILED A PROTEST WITH THE PROCURING ACTIVITY CONTENDING THAT ITS COMPETITOR HAD BEEN GIVEN APPROXIMATELY 30 PERCENT MORE TIME TO SUBMIT ITS FINAL PROPOSAL. ON MARCH 5, 1976, UNITED FILED A PROTEST WITH OUR OFFICE ON THE SAME GROUNDS. ON THE SAME DAY UNITED SUBMITTED A TELEGRAM TO THE CONTRACTING OFFICER ATTEMPTING TO REDUCE ITS PRICE ON THE BASIC SCHEDULE. THIS LATE SUBMISSION WAS NOT CONSIDERED AS IT DID NOT FALL WITHIN THE STATED EXCEPTIONS SET FORTH IN SECTION C-20 OF THE RFP DEALING WITH LATE PROPOSALS AND MODIFICATION OF PROPOSALS.

UNITED'S PROTEST IS BASED ON ITS CONTENTION THAT INADEQUATE AND UNEQUAL TIME WAS AFFORDED FOR PREPARATION OF "BEST AND FINAL" OFFERS. THIS IS A MATTER RELATING TO AN ALLEGED IMPROPRIETY IN THE RFP WHICH WAS APPARENT PRIOR TO THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS. OUR BID PROTEST PROCEDURES SET FORTH IN 4 C.F.R. SEC. 20.2(B)(1) (1975) STATES:

"*** IN THE CASE OF NEGOTIATED PROCUREMENTS, ALLEGED IMPROPRIETIES WHICH DO NOT EXIST IN THE INITIAL SOLICITATION BUT WHICH ARE SUBSEQUENTLY INCORPORATED THEREIN MUST BE PROTESTED NOT LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THE INCORPORATION."

SINCE UNITED'S PROTEST WAS NOT FILED WITH THE PROCURING ACTIVITY UNTIL MARCH 4, 1976, OR WITH OUR OFFICE UNTIL MARCH 5, 1976, WHICH WAS SUBSEQUENT TO THE FEBRUARY 27, 1976, CLOSING DATE, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED. SEE MANAGEMENT SERVICES INCORPORATED, B-184606, FEBRUARY 5, 1976, 76-1 CPD 74.