B-156838, JUL. 13, 1965

B-156838: Jul 13, 1965

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22. PROPOSALS WERE SOLICITED ON A FIXED- PRICE BASIS AND THE RESULTING CONTRACT WILL BE ON A FIRM FIXED-PRICE BASIS. CONDITION 3 OF THE TERMS AND CONDITIONS OF THE RFP PROVIDES THAT PROPOSALS AND MODIFICATIONS RECEIVED AFTER THE TIME SET FOR RECEIPT THEREOF WILL NOT BE CONSIDERED. THERE IS NO INDICATION OF THE WEIGHT TO BE GIVEN EACH INDIVIDUAL FACTOR IN EVALUATING THE PROPOSALS. THE CLOSING TIME FOR RECEIPT OF PROPOSALS WAS EXTENDED TO 5:00 P.M. WERE RECEIVED BEFORE THE EXTENDED CLOSING TIME. THE TOTAL COST TO THE GOVERNMENT WAS $532. TECHNOLOGY VERBALLY CONFIRMED THAT THE FIGURE IN QUESTION WAS CORRECT. WHICH WAS FIFTEEN DAYS AFTER THE APRIL 14.

B-156838, JUL. 13, 1965

TO TECHNOLOGY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22, 1965, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST AN AWARD TO THE UNIVERSITY OF DAYTON UNDER RFP NO. 33-657-65-5026 ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

ON JANUARY 26, 1965, THE AERONAUTICAL SYSTEMS DIVISION ISSUED RFP NO. 33- 657-65-5026 FOR CONDUCTING FLIGHT LOADS PROGRAM AND RELATED TURBULENCE STUDIES AND FOR DEVELOPING AND FURNISHING DATA IN THAT AREA. THEREUNDER, THE CONTRACTOR WOULD USE MAINLY GOVERNMENT-OWNED EQUIPMENT, INCLUDING A COMPUTER AT THE PROCURING ACTIVITY. PROPOSALS WERE SOLICITED ON A FIXED- PRICE BASIS AND THE RESULTING CONTRACT WILL BE ON A FIRM FIXED-PRICE BASIS.

CONDITION 3 OF THE TERMS AND CONDITIONS OF THE RFP PROVIDES THAT PROPOSALS AND MODIFICATIONS RECEIVED AFTER THE TIME SET FOR RECEIPT THEREOF WILL NOT BE CONSIDERED, EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT RELEVANT HERE. PART X OF THE SCHEDULE OF THE RFP AND CLAUSE 56 OF THE GENERAL PROVISIONS, ENTITLED "BASE SUPPORT," SET FORTH THE PROVISIONS RELATING TO THE USE OF GOVERNMENT-OWNED PROPERTY. WHILE THE GENERAL INSTRUCTIONS FOR PREPARATION OF TECHNICAL PROPOSALS SPECIFY TECHNICAL FACTORS TO BE INCLUDED, THERE IS NO INDICATION OF THE WEIGHT TO BE GIVEN EACH INDIVIDUAL FACTOR IN EVALUATING THE PROPOSALS.

THE RFP FURTHER PROVIDED THAT PROPOSALS WOULD BE RECEIVED AT THE ISSUING OFFICE UNTIL 5:00 .M., FEBRUARY 25, 1965. BY AMENDMENT NO. 1 ISSUED FEBRUARY 24, 1965, THE CLOSING TIME FOR RECEIPT OF PROPOSALS WAS EXTENDED TO 5:00 P.M., MARCH 5, 1965. THE RECORD SHOWS THAT TWO PROPOSALS, ONE FROM THE UNIVERSITY OF DAYTON AND THE OTHER FROM TECHNOLOGY, INC., WERE RECEIVED BEFORE THE EXTENDED CLOSING TIME. BY LETTER DATED APRIL 12, 1965, THE CONTRACTING OFFICER INFORMED BOTH OFFERORS THAT, IF THEY WISHED TO REVISE THEIR OFFERS BECAUSE OF CERTAIN MODIFICATIONS IN THE RFP, SUCH "REVISED PROPOSED PRICES MUST BE SUBMITTED TO THE CONTRACTING OFFICER NO LATER THAN 1700 HOURS, 14 APRIL 1965.'

IN RESPONSE THERETO, ON APRIL 14, 1965, BOTH DAYTON AND TECHNOLOGY SUBMITTED REVISED COST PROPOSALS. THE UNIVERSITY OF DAYTON PROPOSED A TOTAL PRICE OF $452,534 AND TECHNOLOGY PROPOSED A TOTAL PRICE OF $516,500. ADDING TO THESE PRICE PROPOSALS THE COST OF USING A GOVERNMENT- OWNED COMPUTER AT THE RATE OF $400 PER HOUR, ON THE BASIS OF 200 HOURS FOR THE USE CONTEMPLATED BY THE UNIVERSITY OF DAYTON AND 100 HOURS FOR THE USE CONTEMPLATED BY TECHNOLOGY, THE TOTAL COST TO THE GOVERNMENT WAS $532,534 UNDER THE PROPOSAL OF THE UNIVERSITY OF DAYTON AND $556,500 UNDER THE PROPOSAL OF TECHNOLOGY.

ON APRIL 27, 1965, THE AIR FORCE REQUESTED TECHNOLOGY TO VERIFY THE PRICE OF AN ITEM ON WHICH A TYPOGRAPHICAL ERROR HAD PREVIOUSLY BEEN CORRECTED. TECHNOLOGY VERBALLY CONFIRMED THAT THE FIGURE IN QUESTION WAS CORRECT. LETTER DATED APRIL 29, 1965, WHICH WAS FIFTEEN DAYS AFTER THE APRIL 14, 1965, DEADLINE, TECHNOLOGY SUBMITTED A MODIFICATION TO ITS PROPOSAL, OFFERING A PRICE WHICH, INCLUDING THE COST OF COMPUTER USAGE, WAS $540,600. INCORPORATED IN THIS LETTER AS PURELY INCIDENTAL WAS A CORRECTION TO THE PRICE OF THE ITEM PREVIOUSLY QUESTIONED. THE AIR FORCE VIEWED THE APRIL 29, 1965, LETTER AS CONTAINING A LATE PROPOSAL, AND IT THEREFORE WAS NOT CONSIDERED IN COMPARING PRICES.

AS BOTH OFFERORS WERE DETERMINED TO BE TECHNICALLY QUALIFIED, THE UNIVERSITY OF DAYTON WAS CHOSEN ON THE BASIS OF THE LOWEST TOTAL COST TO THE GOVERNMENT. AFTER THE PROPOSED AWARDEE WAS SO DETERMINED, THE AIR FORCE ACCEPTED AND IS PROPOSING TO INCORPORATE INTO THE CONTEMPLATED CONTRACT, SEVERAL ALTERNATE APPROACHES PROPOSED BY THE LOW OFFEROR, UNDER WHICH THE COST TO THE AIR FORCE WOULD BE $465,022. ADDING TO THIS THE COST OF A GOVERNMENT-FURNISHED COMPUTER AT THE RATE OF $400 PER HOUR ON THE BASIS OF 217 HOURS GIVES A TOTAL $551,822, WHICH IS $4,678 LOWER THAN THE EVALUATED PRICE OF THE PROPOSAL WHICH THE AIR FORCE CONSIDERS TO HAVE BEEN SUBMITTED IN TIME BY TECHNOLOGY.

YOU PROTEST THE PROPOSED AWARD TO THE UNIVERSITY OF DAYTON ON THE GROUNDS THAT INCOMPLETE DISCUSSIONS WERE HELD WITH OFFERORS; THAT TECHNOLOGY WAS NOT AFFORDED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH REVISIONS TO ITS PROPOSALS AS MAY RESULT FROM NEGOTIATION; AND THAT OFFERORS WERE NOT ADVISED OF THE DATE BY WHICH REVISIONS TO THEIR PROPOSALS WERE REQUIRED TO BE SUBMITTED.

AS STATED ABOVE, CONDITION 3 OF THE TERMS AND CONDITIONS OF THE RFP PROVIDED PURSUANT TO ASPR 3-805.1 (B) THAT PROPOSALS AND MODIFICATIONS THEREOF RECEIVED AFTER THE TIME SET FOR RECEIPT THEREOF WOULD NOT BE CONSIDERED. BOTH OFFERORS WERE ADVISED ON APRIL 12, 1965, THAT REVISED PROPOSED PRICES MUST BE SUBMITTED NO LATER THAN APRIL 14, 1965. PURSUANT TO SUCH ADVICE, TECHNOLOGY SUBMITTED ITS REVISED PRICE ON APRIL 14, 1965. THE LATER MODIFICATION THEREOF DATED APRIL 29, 1965, WAS CLEARLY A "LATE PROPOSAL" WITHIN THE MEANING OF THAT TERM AS USED IN CONDITION 3 OF THE TERMS AND CONDITIONS OF THE RFP AND THE REGULATIONS APPLICABLE TO LATE PROPOSALS. WHILE THE SECRETARY OF THE AIR FORCE IS AUTHORIZED UNDER ASPR 3-805.1 (B) TO CONSIDER LATE PROPOSALS UNDER EXCEPTIONAL CIRCUMSTANCES, HE DID NOT TAKE SUCH ACTION AND THE RECORD DOES NOT INDICATE THAT SUCH PROCEDURE WOULD HAVE BEEN EITHER REQUIRED OR PROPER UNDER THE CIRCUMSTANCES HERE INVOLVED. FURTHERMORE, EVEN IF SUCH LATE MODIFICATION WERE TO BE VIEWED AS THE CORRECTION OF A MISTAKE, IT IS OUR OPINION THAT A DOWNWARD CORRECTION OF A MISTAKE IN A PROPOSAL WHICH WOULD DISPLACE A LOW OFFER MAY BE PERMITTED ONLY WHEN BOTH THE ERROR AND THE AMOUNT INTENDED ARE ASCERTAINABLE FROM THE RFP AND THE PROPOSAL ITSELF. B-154653, NOVEMBER 27, 1964. SUCH IS NOT THE SITUATION HERE.

WITH RESPECT TO YOUR CONTENTION THAT PRIVATE INDUSTRY HAS BEEN REQUESTED TO FURNISH PROPOSALS IN COMPETITION WITH A NONPROFIT ENTITY SUBSIDIZED BY GOVERNMENT PROGRAMS, YOU STATE THAT UNIVERSITIES OBTAIN THEIR SUPPORT FROM ENDOWMENTS, GRANTS, AND TUITION AND RECEIVE SUBSIDIES, DIRECT AND INDIRECT FROM GOVERNMENTAL BODIES; THAT IT IS UNREASONABLE THAT TO EXPECT A PRIVATE ENTERPRISE TO COMPETE WITH A SUBSIDIZED ENTITY; AND THAT TO FORCE PRIVATE INDUSTRY TO COMPETE REPEATEDLY WITH UNIVERSITIES IN AREAS OF DEFENSE PROCUREMENT NORMALLY SERVED BY PRIVATE INDUSTRY WOULD MEAN THE EXODUS OF PRIVATE INDUSTRY FROM THESE AREAS AND A CRITICAL NARROWING OF THE DEFENSE PROCUREMENT BASE. WHILE YOU PRESENT COGENT ARGUMENTS IN THIS REGARD, AT THE PRESENT TIME THERE IS NO POLICY PRONOUNCEMENT BY THE DEPARTMENT OF DEFENSE, EITHER IN THE ARMED SERVICES PROCUREMENT REGULATION OR IN ANY OTHER DIRECTIVE WHICH PRECLUDES COMPETITION BETWEEN PROFIT AND NONPROFIT ORGANIZATIONS WHEN SEEKING GOVERNMENT CONTRACTS.

FINALLY YOU URGE THAT, IN THE EVENT THAT AWARD TO TECHNOLOGY IS NOT ORDERED, THE ENTIRE SOLICITATION BE CANCELLED IN VIEW OF THE EQUITIES AND POLICIES INVOLVED. IN FURTHER SUPPORT THEREOF, YOU CONTEND THAT THE RFP DID NOT INDICATE THE BASIS UPON WHICH THE EVALUATION OF PROPOSALS WOULD BE MADE. SUCH CONTENTION IS NOT ENTIRELY CORRECT, SINCE, AS POINTED OUT ABOVE, THE RFP DID IN FACT LIST THE FACTORS UPON WHICH THE TECHNICAL PROPOSALS WOULD BE EVALUATED. HOWEVER, IT DID NOT INDICATE THE WEIGHT THAT WOULD BE GIVEN SUCH FACTORS IN THE EVALUATION OF THE TECHNICAL PROPOSALS. WHILE WE FEEL THAT THE ADVANCE DISCLOSURE TO OFFERORS OF THE RELATIVE IMPORTANCE OF EVALUATION FACTORS IS DESIRABLE, WE DO NOT FIND THAT SUCH DISCLOSURE IS REQUIRED BY EITHER STATUTE OR REGULATION, AND THE FAILURE TO MAKE SUCH DISCLOSURE IN THE INSTANT RFP WOULD THEREFORE AFFORD NO VALID BASIS ON WHICH THIS OFFICE COULD DIRECT CANCELLATION OF THE SOLICITATION.

FOR THE REASONS STATED ABOVE WE MUST CONCLUDE THAT THERE IS NO PROPER BASIS FOR OBJECTION TO AN AWARD TO THE UNIVERSITY OF DAYTON UNDER THE REFERENCED RFP, AND YOUR PROTEST MUST THEREFORE BE DENIED.