B-156466, JUL. 8, 1965, 45 COMP. GEN. 24

B-156466, JUL. 8, 1965, 45 COMP. GEN. 24

CONTRACTS - NEGOTIATION - TWO-STEP PROCUREMENT - LATE BID ON FIRST PHASE NOTWITHSTANDING LATE DELIVERY TO THE PROCUREMENT OFFICE OF A PROPOSAL UNDER A LETTER REQUEST FOR TECHNICAL PROPOSALS OF THE FIRST STEP OF A TWO- STEP PROCUREMENT, DIRECTED TO THE DESIGNATED OFFICER BEARING THE REQUIRED INFORMATION, AND TIMELY DELIVERED BY AIR FREIGHT TO THE SHIPPING AND RECEIVING AREA OF THE INSTALLATION, THE LETTER REQUEST FAILING TO FURNISH PROCUREMENT OFFICE INFORMATION, THE PROPOSAL SHOULD NOT BE REJECTED AND THE PROPOSER MAY BE AFFORDED AN OPPORTUNITY TO BID ON THE SECOND PHASE OF THE PROCUREMENT, A STRICT CUTOFF DATE FOR ACCEPTANCE OF PROPOSAL NOT BEING WARRANTED IN VIEW OF THE FACT THE PROPOSAL WAS ADDRESSED IN CONFORMITY WITH THE LETTER REQUEST, THE PROPOSALS RECEIVED CONTAINING NO PRICES COULD NOT BECOME BINDING CONTRACTS BY ACCEPTANCE, NO PUBLIC OPENING INTENDED, THE PROPOSALS REMAINED IN THE SOLE KNOWLEDGE OF THE GOVERNMENT AND THE INDIVIDUAL PROPOSERS, AND NO DELAY OR INTERFERENCE HAD OCCURRED IN THE ORDERLY AND EXPEDITIOUS EVALUATION OF THE PROPOSALS FOR TECHNICAL MERIT ONLY.

TO THE SECRETARY OF THE AIR FORCE, JULY 8, 1965:

FURTHER REFERENCE IS MADE TO THE PROTEST OF DYNATRONICS, INCORPORATED, AGAINST REJECTION BY THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO, OF ITS PROPOSAL UNDER LETTER REQUEST FOR TECHNICAL PROPOSAL NR 5D-7596-KNA. THIS PROTEST WAS THE SUBJECT OF THE REPORT DATED MAY 27, 1965, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L.

THE SUBJECT PROPOSAL WAS ISSUED JANUARY 22, 1965, AS THE FIRST STEP OF A TWO-STEP PROCUREMENT, WITH A CLOSING DATE OF FEBRUARY 22, 1965. IT IS REPORTED THAT, BECAUSE SUCH DATE WAS A LEGAL HOLIDAY, THE TIME WAS EXTENDED TO THE CLOSE OF BUSINESS ON FEBRUARY 23, 1965, BUT IT IS NOT SHOWN THAT ANY FORMAL NOTICE TO THAT EFFECT WAS GIVEN.

DYNATRONICS, INCORPORATED, REALIZING THAT THERE WOULD BE NO MAIL DELIVERIES ON FEBRUARY 22, DISPATCHED ITS PROPOSAL BY AIR FREIGHT ON FEBRUARY 20. DELIVERY WAS MADE TO THE SHIPPING AND RECEIVING AREA AT WRIGHT-PATTERSON BY THE AIRBORNE FREIGHT CORPORATION ON FEBRUARY 23 AT 9 A.M., AFTER ATTEMPTED DELIVERY ON THE 22D WAS UNSUCCESSFUL BECAUSE THE BASE WAS CLOSED TO BUSINESS. THE PROPOSAL WAS DIRECTED EXACTLY AS INDICATED IN THE RFP, AND BORE ON ITS COVER THE RFP NUMBER AND THE NAME AND TELEPHONE NUMBER OF THE OFFICER DESIGNATED THEREIN, BUT NO ATTENTION WAS PAID THERETO BY THE RECEIVING PERSONNEL AND THE PROPOSAL DID NOT REACH THE PROCUREMENT OFFICE UNTIL MARCH 3. IT IS REPORTED THAT THE NORMAL TIME OF DELIVERY OF AN AIR FREIGHT PACKAGE AT WRIGHT PATTERSON WOULD HAVE BEEN ABOUT 32 HOURS, AND THAT THE PROPOSAL WOULD THEREFORE HAVE BEEN LATE IN ANY EVENT. THE ADMINISTRATIVE POSITION IS THAT SINCE DYNATRONICS ELECTED TO SEND ITS PROPOSAL BY AIR FREIGHT IT WAS ITS RESPONSIBILITY TO SEE THAT IT WAS DELIVERED TO THE DESIGNATED OFFICE WITHIN THE APPOINTED TIME, AND THAT THE APPLICABLE REGULATIONS PRECLUDE CONSIDERATION OF A LATE PROPOSAL UNDER THE CIRCUMSTANCES HERE PRESENT.

IT IS DYNATRONICS' CONTENTION THAT ITS PROPOSAL IS PROPERLY FOR CONSIDERATION FOR EITHER OF TWO REASONS. FIRST, IT CONTENDS THAT THE LETTER REQUEST DID NOT SPECIFICALLY REQUIRE, IN CLEAR AND UNMISTAKABLE LANGUAGE, THAT THE PROPOSALS MUST BE RECEIVED IN THE PROCUREMENT OFFICE ON OR BEFORE THE CLOSE OF BUSINESS ON THE 23D, BECAUSE THE "PLAIN AND SIMPLE MEANING" OF PARAGRAPHS 9 AND 12 OF THE LETTER REQUEST IS THAT THE PROPOSALS NEED ONLY BE DIRECTED TO OR ADDRESSED TO THE PROCUREMENT OFFICE, BUT NOT DELIVERED TO SAID OFFICE; AND THAT THE LETTER REQUEST "DOES NOT SUCCESSFULLY INVOKE THE FULL SCOPE OF THE ASPR CLAUSE ENTITLED "LATE TECHNICAL PROPOSALS (JAN 1964).'" THE REFERENCED PARAGRAPHS OF THE LETTER REQUEST ARE AS FOLLOWS:

9. YOUR TECHNICAL PROPOSAL (NOT INCLUDING ANY PRICING INFORMATION) MUST BE RECEIVED NOT LATER THAN 22 FEBRUARY 1965. LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT UNDER THE CIRCUMSTANCES PERMITTED BY THE PROVISIONS ATTACHED HERETO ENTITLED "LATE TECHNICAL PROPOSALS (JAN 1964).'

12. ALL INQUIRIES RELATIVE HERETO, AS WELL AS TECHNICAL PROPOSALS, SHALL BE DIRECTED TO THE PROCUREMENT OFFICER AT AFSC SYSTEMS ENGINEERING GROUP (RTD), ATTN: SEKNA, LT. GERALD M. ROSEN, WRIGHT PATTERSON AFB, OHIO, OR TELEPHONE DAYTON, OHIO 253-7111, EXTENSION 34127 OR 34227.

THE SECOND BASIS OF DYNATRONICS' PROTEST IS THAT IT WAS INDUCED TO ATTEMPT DELIVERY BY AIR FREIGHT RATHER THAN BY THE NORMAL AND CUSTOMARY POSTAL SERVICE BY THE FIXING OF A NATIONAL HOLIDAY AS THE CLOSING DATE, AND THAT IT SHOULD NOT BE PENALIZED FOR HAVING USED ITS BEST EFFORTS TO COMPLY WITH THIS UNUSUAL REQUIREMENT.

WITH RESPECT TO DYNATRONICS' FIRST CONTENTION, WE FEEL THAT THERE IS SUBSTANTIAL DOUBT WHETHER THE CIRCUMSTANCES OF THIS CASE JUSTIFY THE PROCUREMENT OFFICER'S DETERMINATION THAT DYNATRONICS' PROPOSAL WAS LATE AND THEREFORE NOT FOR CONSIDERATION UNDER APPLICABLE REGULATIONS. WHILE PARAGRAPH 3-505 (A), ARMED SERVICES PROCUREMENT REGULATION, PROVIDES THAT PROPOSALS RECEIVED IN THE "OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE TIME SPECIFIED" ARE "LATE ROPOSALS" AND MAY BE CONSIDERED ONLY UNDER THE CIRCUMSTANCES THEREIN STATED, WHICH ARE NOT APPLICABLE HERE, WE THINK THE SUBJECT LETTER REQUEST FAILED TO "DESIGNATE" THE SPECIFIC "OFFICE" INTENDED FOR RECEIPT OF PROPOSALS WITH SUFFICIENT CLARITY TO WARRANT THE CONCLUSION THAT DYNATRONICS' PROPOSAL WAS LATE IF NOT RECEIVED IN THE PROCUREMENT OFFICE WITHIN THE TIME SPECIFIED. IN VIEW OF THE FACT THAT THERE WAS NOT INVOLVED ANY PUBLIC OPENING OF BIDS; THAT THE PROPOSALS CONTAINED NO PRICES AND COULD NOT BECOME BINDING CONTRACTS BY ACCEPTANCE; AND THAT THE CONTENTS OF THE PROPOSALS COULD NOT UNDER APPLICABLE REGULATIONS BE DISCLOSED, WE ARE INCLINED TO THE VIEW THAT RECEIPT OF DYNATRONICS' PROPOSAL, ADDRESSED IN CONFORMITY WITH PARAGRAPH 12, AT THE INSTALLATION PRIOR TO THE TIME SPECIFIED SATISFIED THE PURPOSE OF BOTH THE LETTER REQUEST AND OF THE APPLICABLE REGULATION.

CONSIDERING THE NATURE OF THE SOLICITATION IN THIS CASE--- THAT IT WAS FOR UNPRICED TECHNICAL PROPOSALS WHICH REMAIN IN THE SOLE KNOWLEDGE OF THE GOVERNMENT AND THE INDIVIDUAL PROPOSERS AND ON WHICH NO ACTION IS INTENDED OR CAN BE TAKEN EXCEPT EVALUATION OF THE TECHNICAL MERITS- - WE SEE NO VALID REASON FOR A STRICT CUTOFF DATE EXCEPT TO PREVENT DELAY OR INTERFERENCE WITH THE ORDERLY AND EXPEDITIOUS EVALUATION OF SUCH PROPOSALS. SINCE IN THIS INSTANCE IT APPEARS THAT THE DYNATRONICS PROPOSAL WAS IN FACT REVIEWED AND EVALUATED, FOR THE PURPOSE OF DETERMINING WHETHER IT CONTAINED AN IMPORTANT SCIENTIFIC OR TECHNICAL BREAKTHROUGH JUSTIFYING ITS CONSIDERATION EVEN IF REGARDED AS A LATE PROPOSAL, AND SINCE IT DOES NOT APPEAR THAT THIS REVIEW DELAYED THE EVALUATION OF OTHER PROPOSALS, WE CONCLUDE THAT REFUSAL TO CONSIDER IT AS A TIMELY PROPOSAL, IN THE CIRCUMSTANCES HERE PRESENT, WOULD SERVE NO PROPER PURPOSE OF THE GOVERNMENT AND WOULD IMPOSE AN IMPROPER AND UNWARRANTED HARDSHIP ON DYNATRONICS, INCORPORATED.

ACCORDINGLY, ANY FURTHER NECESSARY EVALUATION OF THE DYNATRONICS PROPOSAL SHOULD BE COMPLETED AND AN OPPORTUNITY AFFORDED TO THE FIRM TO BID ON THE SECOND PHASE OF THE PROCUREMENT IF SUCH EVALUATION IS FAVORABLE. THE FILE ENCLOSED WITH THE REPORT IS RETURNED.