B-149161, JUL. 2, 1962

B-149161: Jul 2, 1962

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MARINO'S PROTEST IS STATED AS FOLLOWS: "1. THE WORD NEGOTIATION IS NEVER USED OR MENTIONED. "2. THE TELEGRAM CLEARLY STATES "SUBJECT TO TERMS AND CONDITIONS OF INVITATION" WHICH WERE ALL IFB'S AND OPENED FOR PUBLIC INFORMATION. "3. THIS IS A REPROCUREMENT. THE TELEGRAPHIC BIDS ARE NOT BEING NEGOTIATED BUT ARE BEING CONSIDERED AS FIRM FIXED PRICE BIDS.'. WE ARE ADVISED THAT FIVE CONTRACTS FOR LOCK BOXES WERE TERMINATED FOR DEFAULT BY THE DEPARTMENT ON JUNE 1. THE BIDDERS WHO HAD ORIGINALLY BID ON THESE PROCUREMENTS WERE SOLICITED BY TELEGRAM FOR TELEGRAPHIC OFFERS FOR THE INCOMPLETED ITEMS UNDER THE TERMINATED CONTRACTS. POLICY THESE PROPOSED PROCUREMENTS DO NOT CONTEMPLATE PROGRESS PAYMENTS AND PROVISIONS FOR PROGRESS PAYMENTS WILL NOT BE INCLUDED IN THESE CONTRACTS.

B-149161, JUL. 2, 1962

TO ORO MANUFACTURING COMPANY:

BY LETTER DATED JUNE 12, 1962, MR. FRANK A. MARINO, MANAGER, EASTERN DIVISION, PROTESTED AGAINST THE FAILURE OF THE POST OFFICE DEPARTMENT TO DISCLOSE BID PRICES RECEIVED IN RESPONSE TO A TELEGRAPHIC INVITATION DATED JUNE 5, 1962, AND OPENED ON JUNE 7, 1962.

MR. MARINO'S PROTEST IS STATED AS FOLLOWS:

"1. NOTHING IN THE TELEGRAM REFERS TO THIS PROCUREMENT AS A NEGOTIATED PROCUREMENT. THE WORD NEGOTIATION IS NEVER USED OR MENTIONED.

"2. THE TELEGRAM CLEARLY STATES "SUBJECT TO TERMS AND CONDITIONS OF INVITATION" WHICH WERE ALL IFB'S AND OPENED FOR PUBLIC INFORMATION.

"3. THIS IS A REPROCUREMENT, AND ONLY PREVIOUS BIDDERS OF THE SAME PROCUREMENT COULD POSSIBLY BID AS YOU HAD TO REFER TO THE OLD INVITATION.

"4. THE TELEGRAPHIC BIDS ARE NOT BEING NEGOTIATED BUT ARE BEING CONSIDERED AS FIRM FIXED PRICE BIDS.'

WE ARE ADVISED THAT FIVE CONTRACTS FOR LOCK BOXES WERE TERMINATED FOR DEFAULT BY THE DEPARTMENT ON JUNE 1, 1962. THEREAFTER, ON JUNE 5, 1962, THE BIDDERS WHO HAD ORIGINALLY BID ON THESE PROCUREMENTS WERE SOLICITED BY TELEGRAM FOR TELEGRAPHIC OFFERS FOR THE INCOMPLETED ITEMS UNDER THE TERMINATED CONTRACTS. THE TELEGRAPHIC SOLICITATION READ:

"QUOTE TELEGRAM LOWEST OFFER FOR LOCK BOXES REPROCUREMENT ON DEFAULTED CONTRACTS FOR INVITATIONS CITED BELOW. OFFERS SUBJECT TO ALL TERMS AND CONDITIONS OF INVITATIONS; HOWEVER PURSUANT TO POST OFFICE DEPT. POLICY THESE PROPOSED PROCUREMENTS DO NOT CONTEMPLATE PROGRESS PAYMENTS AND PROVISIONS FOR PROGRESS PAYMENTS WILL NOT BE INCLUDED IN THESE CONTRACTS.

TABLE INVITATION 1585 OPENED 11-9161 ALL ITEMS INVITATION 1590 OPENED 11- 16-61 FULL QUANTITY 737B-S, C-S, D'S AND E'S ONLY INVITATION 1591 OPENED 11-17-61 ALL ITEMS INVITATION 1594 OPENED 11-20 61 734D'S ONLY INVITATION 1851 OPENED 1-26-62 733E'S ONLY

TELEGRAPHIC BIDS WILL BE RECEIVED AT THIS OFFICE ATTENTION MRS. G. B. KELLEY ONLY UNTIL 2:00 PM. LOCAL PREVAILING TIME, JUNE 7, 1962.'

THE USE OF THE WORD "QUOTE" IN THE TELEGRAM RATHER THAN THE WORD "BID" WOULD APPEAR TO BE SUFFICIENT TO APPRISE THE INTERESTED FIRMS THAT THIS PROCUREMENT WAS NOT FORMALLY ADVERTISED AND THAT NEGOTIATION WAS CONTEMPLATED. WE DO NOT FEEL THAT THE USE OF THE TERMS "NEGOTIATION" OR ,PROPOSALS" WAS NECESSARY TO CONVEY THIS INFORMATION.

REFERENCE IN THE TELEGRAM TO THE EFFECT THAT OFFERS ARE "SUBJECT TO ALL TERMS AND CONDITIONS OF INVITATIONS" WAS FOR THE PURPOSE OF IDENTIFYING THE ITEMS TO BE PROCURED. SINCE THE REPROCUREMENT WAS BEING SOUGHT FROM SOURCES WHICH HAD ORIGINALLY BID, IT WAS CONSIDERED MORE EXPEDIENT TO REFER TO SUCH PRIOR INVITATIONS SPECIFICALLY. THIS APPEARS TO HAVE BEEN RECOGNIZED BY MR. MARINO IN HIS POINT NO. 3.

CONCERNING MR. MARINO'S POINT NO. 4, WE ARE ADVISED THAT THE DEPARTMENT HAD AT ALL TIMES INTENDED TO NEGOTIATE THE REPROCUREMENT. NEGOTIATIONS WERE HAD WITH OFFERORS ON JUNE 14, 1962; HOWEVER, YOUR FIRM, THOUGH REQUESTED, DECLINED TO NEGOTIATE WITH THE DEPARTMENT.

FURTHERMORE, UNDER THE CIRCUMSTANCES HERE INVOLVED THERE CAN BE NO DOUBT AS TO THE AUTHORITY OF THE POST OFFICE DEPARTMENT TO NEGOTIATE THE REPROCUREMENT. UNDER THE STANDARD "DEFAULT" CLAUSE IN SUPPLY CONTRACTS, THE GOVERNMENT RESERVES THE RIGHT TO NEGOTIATE FOR REPURCHASE OF THE DEFAULTED SUPPLIES. SUCH CLAUSE PROVIDES THAT "THE GOVERNMENT MAY PROCURE, UPON SUCH TERMS AND IN SUCH MANNER AS THE CONTRACTING OFFICER MAY DEEM APPROPRIATE, SUPPLIES * * * SIMILAR TO THOSE SO TERMINATED.'

ALSO, SINCE THE REPROCUREMENT WAS URGENT IT COULD HAVE BEEN NEGOTIATED UNDER THE AUTHORITY OF SECTION 302 (C) (2) OF THE ADMINISTRATIVE SERVICES AND PROPERTY ACT OF 1949, 41 U.S.C. 252 (C) (2), AND THE CRITERIA PRESCRIBED BY SECTION 1-3.202 OF THE FEDERAL PROCUREMENT REGULATIONS.

SINCE THIS WAS A NEGOTIATED PROCUREMENT NEITHER THE LAW NOR REGULATIONS REQUIRE DISCLOSURE OF THE QUOTED PRICES TO THE PUBLIC OR TO THE INTERESTED OFFERORS UNTIL AFTER AN AWARD HAS BEEN MADE. ACCORDINGLY, THE PROTEST MUST BE DENIED.