B-156975, AUG. 11, 1965

B-156975, AUG. 11, 1965

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 14, 1965, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, IN CONNECTION WITH THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC/E/-28-043-65-00349.

THE FILE SHOWS THAT THE SUBJECT RFP WAS ISSUED BY THE FORT MONMOUTH PROCUREMENT DIVISION ON DECEMBER 23, 1964. THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, ORIGINALLY ESTABLISHED AS JANUARY 25, 1965, WAS SUBSEQUENTLY EXTENDED TO FEBRUARY 1, 1965, AT THE REQUEST OF SEVERAL PROSPECTIVE OFFERORS. OF THE 59 ORGANIZATIONS SOLICITED, 16 FIRMS CHOSE TO RESPOND. FIFTEEN OF THESE PROPOSALS WERE TIMELY SUBMITTED.

THE PROPOSAL SUBMITTED BY RF COMMUNICATIONS, INCORPORATED, WAS PICKED UP AT THE FORT MONMOUTH POST OFFICE ON FEBRUARY 3, 1965. IT WAS ESTABLISHED HOWEVER THAT THE PROPOSAL WAS IN FACT RECEIVED AT THE POST OFFICE AT 7:30 A.M., FEBRUARY 2, 1965. EXAMINATION OF THE PACKAGE DISCLOSED THAT IT HAD BEEN RECEIVED IN DAMAGED CONDITION AND WAS REPAIRED ENROUTE. IN ORDER TO DETERMINE WHETHER THE PROPOSAL WAS TIMELY MAILED, THE CONTRACTING OFFICER, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-393.3 (C) CONTACTED THE SUPERINTENDENT, FORT MONMOUTH, POST OFFICE, WHO ADVISED THAT THE PACKAGE HAD NOT BEEN MAILED IN SUFFICIENT TIME AND THAT THERE HAD NOT BEEN ANY UNDUE DELAY IN THE MAILS.

ON FEBRUARY 10, 1965, ALL PROPOSALS WERE TRANSMITTED FOR TECHNICAL EVALUATION. RF COMMUNICATIONS' PROPOSAL, HOWEVER, WAS SUBMITTED FOR EVALUATION SEPARATELY AS A "LATE PROPOSAL" IN ACCORDANCE WITH ASPR 3 505 TO DETERMINE IF THE PROPOSAL EVIDENCED ANY SCIENTIFIC OR TECHNICAL BREAKTHROUGH. UPON BEING ADVISED THAT THE "LATE PROPOSAL" DID NOT CONTAIN ANY SIGNIFICANT IMPROVEMENT OR BREAKTHROUGH, THE CONTRACTING OFFICER CONCLUDED THAT THE PROPOSAL WAS NOT ACCEPTABLE FOR CONSIDERATION. COMMUNICATIONS WAS ADVISED OF THIS DECISION BY LETTER DATED FEBRUARY 24, 1965.

FOLLOWING THE RECEIPT OF LETTERS DATED MARCH 2 AND 10, 1965, THE CONTRACTING OFFICER AGAIN PROCEEDED TO DETERMINE IF THE PROPOSAL WAS TIMELY MAILED. IN RESPONSE TO THE CONTRACTING OFFICER'S REQUEST THE SUPERINTENDENT OF MAILS, ROCHESTER, NEW YORK, ADVISED THAT THERE WAS NO DELAY IN DISPATCHING THE PARCEL FROM ROCHESTER AND THAT IT HAD BEEN PLACED ABOARD A TRAIN DUE TO ARRIVE IN NEW YORK CITY AT 3:27 A.M., SUNDAY, JANUARY 31, 1965. THE POSTMASTER EXPRESSED THE VIEW THAT THE PARCEL SHOULD HAVE BEEN DELIVERED SOMETIME ON MONDAY, FEBRUARY 1, 1965. THE SUPERINTENDENT OF MAILS AT NEWARK, NEW JERSEY, STATED THAT THE PARCEL WAS FORWARDED TO FORTH MONMOUTH ON THE FIRST AVAILABLE DISPATCH FOLLOWING RECEIPT AT NEWARK. THIS DISPATCH TIME HAS BEEN ESTABLISHED AS 12:30 A.M., FEBRUARY 2, 1965. WE HAVE BEEN ADVISED THAT NO RECORDS ARE AVAILABLE AT THE NEW YORK POST OFFICE TO SHOW THE HANDLING OF THIS PARCEL. UPON RECEIPT OF THE ABOVE REPORTS, THE CONTRACTING OFFICER AGAIN WEIGHED THE AVAILABLE INFORMATION AND CONCLUDED THAT THERE WAS NOT SUFFICIENT EVIDENCE TO ESTABLISH THAT THE LATE PROPOSAL WAS DUE SOLELY TO DELAY IN THE MAILS.

BECAUSE OF THE CONFLICTING POSITION TAKEN BETWEEN ROCHESTER AND FORT MONMOUTH OUR OFFICE ON JUNE 15, 1965, ASKED THE POSTMASTER GENERAL FOR HIS OPINION ON THE MATTER. BY LETTER DATED JULY 7, 1965, WE HAVE BEEN ADVISED THAT IT IS REASONABLE TO EXPECT DELIVERY OF FIRST-CLASS REGISTERED, SPECIAL DELIVERY MAIL BY 4:30 P.M., MONDAY, AT FORT MONMOUTH, NEW JERSEY, IF MAILED FROM ROCHESTER, NEW YORK, BY 12:00 NOON THE PRECEDING SATURDAY. WHILE IN RETROSPECT IT APPEARS THAT THE PROPOSAL WAS PROBABLY MAILED IN SUFFICIENT TIME, THE CONTRACTING OFFICER'S DETERMINATION WAS NEITHER ARBITRARY NOR CAPRICIOUS; AND WAS MADE ON THE BEST AVAILABLE INFORMATION, AND IN ACCORDANCE WITH ASPR 2-303.3 (C) WHICH REQUIRES THAT INFORMATION CONCERNING NORMAL DELIVERY TIME BE OBTAINED FROM POSTAL OFFICIALS AT THE POST OFFICE SERVING THE PROCURING ACTIVITY, B-156101, MAY 4, 1965. MOREOVER, BY LETTER DATED JULY 20, 1965, FROM THE ASSISTANT DEPUTY DIRECTOR FOR PROCUREMENT, WE HAVE BEEN ADVISED THAT THE PROPOSAL SUBMITTED BY RF COMMUNICATIONS WAS MORE THAN $73,000 HIGHER THAN THAT SUBMITTED BY THE SUCCESSFUL CONTRACTOR. UNDER THESE CIRCUMSTANCES WE DO NOT BELIEVE THAT RF COMMUNICATIONS HAS ANY BASIS TO FURTHER QUESTION THE SUBJECT CONTRACT.

INSOFAR AS NOTIFICATION IS CONCERNED ASPR 3-505 ENTITLED,"LATE PROPOSALS AND MODIFICATIONS" PROVIDES:

"/A) PROPOSALS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE REQUESTS FOR PROPOSALS AFTER THE TIME SPECIFIED FOR THEIR SUBMISSION ARE "LATE PROPOSALS.' LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD, EXCEPT UNDER THE CIRCUMSTANCES SET FORTH IN 2-303 RELATING TO LATE BIDS OR WHERE ONLY ONE PROPOSAL IS RECEIVED. (FOR THE PURPOSE OF APPLYING THE LATE BID RULES TO LATE PROPOSALS, UNLESS A SPECIFIC TIME FOR RECEIPT OF PROPOSALS IS STATED IN THE REQUEST FOR PROPOSALS, THE TIME FOR SUCH RECEIPT SHALL BE DEEMED TO BE THE TIME FOR CLOSE OF BUSINESS OF THE OFFICE DESIGNATED FOR RECEIPT OF PROPOSALS ON THE DATE STATED IN THE REQUEST FOR PROPOSALS.) NOTWITHSTANDING THE PROVISIONS OF 1-109, EXCEPTIONS MAY BE AUTHORIZED ONLY BY THE SECRETARY CONCERNED, AND ONLY WHERE CONSIDERATION OF A LATE PROPOSAL IS OF EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH. TO DETERMINE THE POSSIBLE EXISTENCE OF SUCH EXTREME IMPORTANCE, NOTWITHSTANDING 2 303.7, ALL LATE PROPOSALS SHALL BE OPENED PRIOR TO AWARD AND IF NOT CONSIDERED FOR AWARD SHALL BE RETURNED TO THE OFFEROR.

"/C) OFFERORS SUBMITTING LATE PROPOSALS OR MODIFICATIONS SHALL BE NOTIFIED IN ACCORDANCE WITH 2-303.6, EXCEPT THAT THE NOTICES PROVIDED FOR THEREIN SHALL BE APPROPRIATELY MODIFIED TO RELATE TO THE REQUEST FOR PROPOSALS AND THE PROPOSAL OR MODIFICATIONS THEREUNDER.'

ASPR 2-303.6 AND 2-303.7 PROVIDE AS FOLLOWS:

"2-303.6 NOTIFICATION TO LATE BIDDERS. WHERE A LATE BID IS RECEIVED AND IT IS CLEAR FROM AVAILABLE INFORMATION THAT UNDER 2-303.2 SUCH LATE BID CANNOT BE CONSIDERED, THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE SHALL PROMPTLY NOTIFY THE BIDDER THAT HIS BID WAS RECEIVED LATE AND WILL NOT BE CONSIDERED (SEE ALSO 2-303.7). HOWEVER, WHERE A LATE BID IS TRANSMITTED BY REGISTERED MAIL AND RECEIVED BEFORE AWARD BUT IT IS NOT CLEAR FROM AVAILABLE INFORMATION WHETHER THE BID CAN BE CONSIDERED, OR IN ANY CASE OF A LATE BID TRANSMITTED BY CERTIFIED MAIL RECEIVED BEFORE AWARD, THE BIDDER SHALL BE PROMPTLY NOTIFIED * * *.

"2-303.7 DISPOSITION OF LATE BIDS. LATE BIDS WHICH ARE NOT CONSIDERED FOR AWARD SHALL BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER, UNLESS OTHER DISPOSITION IS REQUESTED OR AGREED TO BY THE BIDDER, EXCEPT THAT AN UNIDENTIFIED BID MAY BE OPENED SOLELY FOR PURPOSES OF IDENTIFICATION AS PROVIDED IN 2-401.'

RATHER THAN IMMEDIATELY NOTIFY RF COMMUNICATIONS THAT THEIR OFFER WAS CONSIDERED A "LATE PROPOSAL" AND WOULD BE EVALUATED AS SUCH THE CONTRACTING OFFICER CHOSE TO FIRST HAVE THE PROPOSAL TECHNICALLY EVALUATED. WHILE PROMPT NOTIFICATION IS REQUIRED IN THE CASE OF ADVERTISED PROCUREMENTS, THE ASPR IS SILENT AS TO WHETHER NOTIFICATION IS REQUIRED BEFORE OR AFTER THERE HAS BEEN A TECHNICAL EVALUATION OF A LATE PROPOSAL. IN VIEW THEREOF, WE ARE BY SEPARATE LETTER OF TODAY BRINGING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF DEFENSE WITH THE SUGGESTION THAT THE MATTER BE CLARIFIED.